TR    NTSLATIOH 


LAW  OF  CIVIL  PROCEDURE 


CUBA  AND  PORTO  RICO, 


ANNOTATIONS,  EXPLANATORY  NOTES,  AND  AMENDMENTS 
MADE  SINCE  THE  AMERICAN  OCClPATION. 


WAR  DKPAKTMKXT, 

VISION     OF    INSULAR     AFFAIRS, 
JAN-I-ARY,   1901. 


WASHINGTON: 

<•  ;o VFJ ex  M  I'. NT  I'j a\ rr  i  \(  J  ( >  PFICE. 
1  9  t  J . 


GIFT  OF 
C.  .C  . 


TRANSLATION 


OF  THE 


LAW  OF  CIVIL  PROCEDURE 


FOR 


CUBA  AND  PORTO  RICO, 


WITH 


ANNOTATIONS,  EXPLANATORY  NOTES,  AND  AMENDMENTS 
MADE  SINCE  THE  AMERICAN  OCCUPATION. 


WAR  DEPARTMENT, 

DIVISION    OF    INSULAR     AFFAIRS, 

JANUARY,  1901. 


WASHINGTON: 

GOVERNMENT    PRINTING    OFFICE. 
1901. 


COIsTTE^STTS. 


Page. 

BOOK  I. — Provisions  common  to  contentious  and  voluntary  jurisdiction 1 

TITLE  I. — Appearance  in  an  action 1 

Section  I.  Litigants,  solicitors,  and  attorneys 1 

Section  II.  Legal  aid  to  the  poor 7 

TITLE  II. — Competency  and  questions  of  jurisdiction 15 

Section  I.  General  provisions 15 

Section  II.  Rules  to  determine  competency 16 

Section  III.  Questions  of  competency 24 

Section  IV.    Remedy  of  complaint  against  administrative  authorities.  31 

TITLE  III.— Applications  to  civil  courts  for  modification  of  actions  of  eccle- 
siastical courts 32 

TITLE  IV. — Consolidations 36 

Section  I.  Consolidation  of  actions 36 

Section  II.  Consolidation  of  records  of  proceedings 37 

TITLE  V.— Challenges 42 

Section  I.  General  provisions 42 

Section  II.  Challenge  of  justices,  judges  of  first  instance,  and  assessors.  43 

Section  III.  Challenge  of  municipal  judges 47 

Section  IV.  Challenge  of  subordinate  officials  of  superior  and  inferior 

courts 49 

TITLE  VI. — Judicial  procedure  and  periods  of  time 52 

Section  I.  Judicial  proceedings  in  general 52 

Section  II.  Legal  working  days  and  hours 53 

Section  III.  Notifications,  citations,  summonses,  and  requisitions 54 

Section  IV.  Service  of  notifications  in  court  room 57 

Section  V.  Letters  requisitorial,  letters  rogatory,  letters  mandatory, 

and  mandates • : 58 

Section  VI.  Judicial  periods  of  time,  compulsory  process,  and  defaults.  61 

TITLE  VII. — Dispatch,    hearing,   voting  upon,    and   decision  of   judicial 

matters 64 

Section  I.  Ordinary  diepatch  and  hearing 64 

Section  II.  Justices  ' '  ponentes " 67 

Section  III.  Voting  and  decisions  in  actions 69 

Section  IV.  Manner  of  adjusting  disagreements 71 

TITLE  VIII. — Manner  and  form  in  which  judicial  decisions  shall  be  ren- 
dered   72 

Section  I.  Judgments 72 

Section  II.  Form  in  which  judicial  resolutions  shall  be  rendered 74 

TITLE  IX. — Remedies  against  judicial  resolutions  and  their  effects 76 

Section  I.  Remedies  against  resolutions  of  judges  of  first  instance 76 

Section  II.  Remedies  against  resolutions  of  audiencias 81 

Section  III.  Remedies  against  decisions  of  the  Supreme  Court 82 

Section  IV.  Provisions  common  to  superior  and  inferior  courts 

in 


381498 


IV  CONTENTS. 

BOOK  I — Continued.  Page. 

TITLE  X. — Extinction  of  actions 83 

TITLE  XI.— Taxation  of  costs 85 

TITLE  XII. — Distribution  of  business 87 

TITLE  XIII. — Disciplinary  corrections 88 

BOOK  II. — Contentious  jurisdiction 93 

TITLE  I. — Proceedings  to  avoid  litigation 93 

TITLE  II. — Declaratory  actions 98 

Chapter  I.  Provisions  common  to  declaratory  actions 98 

Section  I.  Eules  to  determine  the  proper  action 98 

Section  II.  Preparatory  proceedings 101 

Section  III.  Presentation  of  documents 103 

Section  IV.  Copies  of  instruments  and  documents  and  their  pur- 
poses    106 

Chapter  II.  Declaratory  actions  of  greater  import 107 

Section  I.  Complaint  and  summons 107 

Section  II.  Dilatory  exceptions 109 

Section  III.  Answers,  counterclaims,  replications,  and  rejoinders.  112 
Section  IV.  Admission  of  evidence,  time  within  which  to  be 

taken,  and  general  provisions  relating  thereto 114 

Section  V.  Means  of  proof 119 

1.  Confession  in  court 119 

2.  Public  documents 122 

3.  Private   documents,  correspondence,  and   books  of  mer- 
chants   127 

4.  Comparison  of  handwriting 129 

5.  Opinion  of  experts 130 

6.  Judicial  inspection 134 

7.  Evidence  of  witnesses 135 

8.  Challenge  of  witnesses 139 

Section  VI.  Final  pleadings,  hearings,  and  judgments 141 

Chapter  III.  Actions  of  lesser  import 143 

Chapter  IV.  Oral  actions 148 

TITLE  III. — Incidental  issues 152 

TITLE  IV. — Proceedings  in  default 155 

TITLE  V. — Settlements  by  arbitrators  and  amicable  compounders 160 

Section  I.  Settlements  by  arbitrators 160 

Section  II.  Settlements  by  amicable  compounders 165 

TITLE  VI.— The  second  instance 168 

Section  I.  General  provisions 168 

Section  II.  Appeals  from  final    judgments  rendered    in  actions  of 

greater  import 171 

Section  III.  Appeals  from  interlocutory  judgments  and  rulings  and  in 

actions  other  than  those  of  greater  import 176 

TITLE  VII. — The  remedy  of  civil  liability  against  judges  and  associate 

justices 178 

TITLE  VIII. — Execution  of  judgments 181 

Section  I.  Judgments  rendered  by  Spanish  courts  and  judges 181 

Section  II.  Judgments  rendered  by  foreign  courts 186 

TITLE  IX. — Intestate  proceedings 187 

Section  I.  Provisional  measures 187 

Section  II.  Designation  of  heirs  ab  intestato 191 

Section  III.  Intestate  proceedings 195 

Section  IV.  Administration  of  intestate  successions  . .           196 


CONTENTS.  V 

BOOK  II — Continued.  Page. 

TITLE  X. — Testamentary  proceedings 201 

Section  I.  General  provisions 201 

Section  II.  Voluntary  testamentary  proceedings 204 

Section  III.  Necessary  testamentary  proceedings 211 

Section  IV.  Administration  of  testate  inheritances 211 

TITLE  XI. — Adjudication  of  property  to  persons  not  designated  by  name.  212 

TITLE  XII. — Insolvency  proceedings 217 

Section  I.  Composition  and  respite 217 

Section  II.  Declaration  of  insolvency 222 

Section  III.  Proceedings  consequent  upon  a  declaration  of  insolvency.  224 

Section  IV.  Citation  of  creditors  and  appointment  of  trustees 228 

Section  V.  First  record— Administration  of   the  estate  of  the  insol- 
vent   234 

Section  VI.  Second  separate  record — Acknowledgment,  classification, 

and  payment  of  credits 239 

1.  Acknowledgment  of  credits 239 

2.  Classification  of  credits 242 

3.  Delay  and  its  effects 245 

4.  Payment  of  credits 247 

Section  VII.  Third  separate  record — Classification  of  insolvency  pro- 
ceedings    249 

Section  VIII.  Settlements  between  creditors  and  the  insolvent 250 

Section  IX.  Maintenance  of  the  insolvent 252 

TITLE  XIII. — Proceedings  in  bankruptcy 253 

Section  I.  Declaration  of  bankruptcy '   255 

Section  II.  Administration  of  the  bankruptcy 265 

Section  III.  Retroactive  effects  of  bankruptcy 268 

Section   IV.    Examination,  classification,    and    payment    of    credits 

against  the  estate  of  the  bankrupt 271 

Section  V.    Classification   of  the  bankruptcy  and  discharge  of  the 

bankrupt : 272 

Section  VI.  Settlements  between  creditors  and  the  bankrupt 275 

TITLE  XIV. — Provisional  seizures  and  security  of  property  in  litigation 278 

Section  I.  Provisional  seizures 278 

Section  II.  Security  of  property  in  litigation 283 

TITLE  XV. — Executory  actions 285 

Section  I.  Executory  process 285 

Section  II.  Compulsory  process 300 

Section  III.  Intervention 310 

TITLE  XVI. — Compulsory  process  in  commercial  affairs 314 

TITLE  XVII.— Actions  of  unlawful  detainer 318 

Section  I.  General  provisions 318 

Section  II.  Actions  of  unlawful  detainer  before^ municipal  courts 320 

Section  III.  Actions  of  unlawful  detainer  before  courts  of  first  instance.  323 

Section  IV.  Execution  of  judgments  in  actions  of  unlawful  detainer. .  325 

TITLE  XVIII. — Temporary  maintenance 327 

TITLE  XIX.— Redemptions  (Retractos) , 329 

TITLE  XX. — Summary  proceedings  relating  to  property 331 

Section  I.  Summary  proceedings  to  acquire  possession 332 

Section  II.  Summary  proceedings  to  retain  or  recover  possession 335 

Section  III.  Summary  proceedings  based  upon  a  new  construction.. .  337 

Section  IV.  Summary  proceedings  against  ruinous  constructions 340 


VI  CONTENTS. 

BOOK  II — Continued.  Page. 

TITLE  XXI. — Appeals  for  annulment  of  judgment 341 

Section  I.  The  court  competent  to  take  cognizance  of  appeals  for  annul- 
ment of  judgment 341 

Section  II.  Cases  in  which  appeals  for  annulment  of  judgment  lie 342 

Section  III.  Preparation  of  the  appeal  for  annulment  of  judgment  by 

reason  of  a  violation  of  law  or  of  legal  doctrine 351 

Section  IV.  Interposition  and  admission  of  an  appeal  for  violation  of 

law  or  doctrine 355 

Section  V.  Hearing  and  decision  of  appeals  admitted  for  violation  of 

law  or  legal  doctrine 361 

Section  VI.  Interposition,  admission  of,  and  proceedings  in  an  appeal 

for  breach  of  form 363 

Section  VII.  Appeals  for  breach  of  form  and  at  the  same  time  for  vio- 
lation of  law  or  doctrine 366 

Section  VIII.  Appeals  from   decisions   rendered  by   amicable   com- 

pounders 367 

Section  IX.  Appeals  taken  by  the  department  of  public  prosecution..  367 
Section  X.  Provisions  common  to  all  appeals  for  annulment  of  judg- 
ment    368 

TITLE  XXII. — Appeals  for  review 370 

Section  I.  Cases  in  which  an  appeal  for  review  lies 370 

Section  II.  Terms  within  which  to  interpose  an  appeal  for  review 371 

.     Section  III.  Hearing  and  determination  of  appeals  for  review 371 

Section  IV.  Decisions  rendered  by  virtue  of  appeals  for  review 372 

BOOK  III. — Voluntary  jurisdiction 375 

PART  FIRST 375 

TITLE  I. — General  provisions 375 

TITLE  II. — Adoption  and  arrogation 377 

TITLE  III. — Designation  of  tutors  and  curators  and  their  appointment.  378 

Section  I.  Designation  of  tutors 378 

Section  II.  Appointment  of  curators  ad  bona 379 

Section  III.  Appointment  of  curators  for  incapacitated  persons..  380 

Section  IV.  Designation  of  curators  ad  litem 381 

Section  V.  Appointment  to  the  office  of  tutor  or  curator 382 

Section  VI.  Provisions  common  to  the  foregoing  sections 384 

TITLE  IV.— Custody  of  persons 385 

TITLE  V. — Substitution  for  the  consent  of  parents,  grandparents,  or 

curators  to  contract  marriage 389 

TITLE  VI. — Manner  of  elevating  a  verbal  will  or  codicil  to  a  public 

instrument 394 

TITLE  VII. — Opening  of  sealed  wills  and  the  filing  in  protocols  of  tes- 
tamentary memoranda 395 

TITLE  VIII. — Proceedings  to  dispense  with  the  law 399 

TITLE  IX. — Investiture  of  power  to  appear  in  court ^01 

TITLE  X. — Proceedings  to  perpetuate  testimony 402 

TITLE  XI. — Alienation  of  the  property  of  minors  and  incapacitated 

persons  and  transactions  with  their  rights 403 

TITLE  XII. — Administration   of   property   of  absent   persons  whose 

whereabouts  are  unknown 406 

TITLE  XIII. — Voluntary  judicial  public  sales 409 

TITLE  XIV. — Judicial  possession  in  cases  in  which  summary  proceed- 
ings to  acquire  possession  do  not  lie 410 

TITLE  XV. — Surveys  and  demarcations <  411 


CONTENTS.  VII 

BOOK  III — Continued.  Page. 

PART  SECOND. — Acts  of  voluntary  jurisdiction  in  commercial  matters 413 

TITLE  I. — General  provisions 413 

TITLE  II. — The  deposit  and  examination  of  commercial  effects 415 

TITLE  III. — Attachment  and  temporary  deposit  of  the  value  of  bills 

of  exchange 417 

TITLE  IV. — Classification  of  averages  and  liquidation  of  gross  average 

and  contribution  thereto 418 

TITLE  V. — Discharge,  abandonment,  and  intervention  of  merchandise 

'    and  bond  for  cargo • 420 

TITLE  VI. — Sale  and  mortgage  of  merchandise  in  urgent  cases  and  the 

repairing  of  vessels 

TITLE  VII. — Other  commercial  acts  requiring  peremptory  judicial  inter- 
vention   425 

TITLE  VIII. — Appointment  or  arbitrators  and  experts  in  insurance 

contracts 426 

APPENDIX  I. — Changes  in  and  amendments  to  the  Civil  Procedure  for  the  Island 

of  Cuba  made  by  the  military  government  during  the  years  1899  and  1900. .  431 

Order  No.  41,  April  14,  1899. — Organization  of  the  supreme  court 431 

Constitution  and  attributes  of  the  supreme  court 432 

President  of  supreme  court 435 

Secretary  or  chief  clerk . 436 

Deputy  clerks  of  the  court . 437 

Fiscal  and  assistant  fiscales 437 

Subordinate  employees 438 

Appointment,  term  of  office,  priority,  possession  of  office,   oaths  of 
office,  and  salaries  of  functionaries,  employees,  and  subordinates  of 

the  supreme  court 438 

Qualifications  and   requirements   for  appointment  to   office   in   the 

supreme  court '. 439 

Order  No.  63,  May  25,  1899.—  Votos  reservados 440 

Order  No.  66,  May  31,  1899.— Civil  marriages 441 

Order  No.  69,  June  3,  1899. — Extension  of  time  for  collection  and  pay- 
ment of  obligations 442 

Order  No.  92,  June  26,  1899. — Appeals  for  annulment  of  judgment 444 

Order  No.   96,  June  29,   1899. — Administrative   proceedings   (contencioso 

administrative) 463 

Order  No.  114,  July  21,  1899.— Putting  order  No.  92  in  force 464 

Order  No.  135,  August  11,  1899. — Time  for  appearance  in  court  changed..  464 

Order  No.  157,  September  5,  1899.— Court  in  full  (tribunal  en  pleno) 465 

Order  No.  176,  September  21,  1899.— Legal  holidays 465 

Order  No.  42,  January  26,  1900. — Birth  certificates  relating  to  marriage. . .  466 

Order  No.  166,  April  23,  1900.— Intervention  of  solicitors  abolished 467 

Order  No.  141,  April  7,  1900.— Modifications  of  Civil  Procedure 469 

Order  No.  192,  May  9,  1900.— Appeals  for  annulment  of  judgment 470 

Order  No.  242,  June  18,  1900.— Modifications  of  Civil  Procedure 471 

Order  No.  307,  August  8,  1900.— Eelating  to  marriages 473 

Order  No.  427,  October  15,  1900.— Writ  of  habeas  corpus 475 

Order  No.  438,  October  21,  1900.—  Apuntamientos  abolished 483 

APPENDIX  II. — Changesinand  amendments  to  theCivil  Procedure  for  the  Island 
of  Porto  Rico  made  by  the  military  government  during  the  years  1898,  1899, 

and  1900 485 

Order  No.  19,  December  2,  1898. — Establishment  of  the  supreme  court...  485 


VIII  CONTENTS. 

APPENDIX  II — Continued.  Page. 

Order  No.  71,  May  31,  1899.— Writ  of  habeas  corpus  authorized 486 

Circular  No.  17.  — Instructions  relative  to  habeas  corpus 486 

Order  No.  88,  June  27,  1899. — United  States  provisional  court  established.  488 

Order  No.  118,  August  16,  1899.— Judicial  districts  of  Porto  Rico 491 

Order  No.  173,  October  28,  1899.— Judicial  acts  to  be  paid  for  in  advance.  502 
Order  No.  182,  November  18,  1899.— Amendment  of  Order  No.  118,  relat- 
ing to  appeals 503 

Order  No.   186,  November   24,   1899.— Regulations   for  publishing   legal 

notices 503 

Order  No.  194. — Schedule  of  fees  to  be  charged  by  judicial  officers 504 

Order  No.  47,  March  6,  1900. — Interpretation  of  certain  articles  of  the 

Treaty  of  Paris, 507 


INTRODUCTORY  NOTE. 


The  translators  of  the  present  Code  of  Civil  Procedure  beg  to  call 
attention  to  the  fact  that  there  have  been  inserted  as  footnotes  to  the 
present  translation  over  one  thousand  decisions  rendered  by  the 
supreme  court  of  Madrid,  which  serve  to  elucidate  the  language  of 
the  text.  These  decisions  are  authoritative  interpretations,  and  in  the 
Spanish  courts  have  the  force  of  law.  The  citations  might  have  been 
more  numerous,  but  only  such  decisions  have  been  inserted  as  in  the 
judgment  of  the  translators  would  be  useful  in  the  prosecution  of 
actions  before  the  insular  courts. 

The  references,  also  inserted  as  footnotes,  calling  attention  to  other 
laws  in  force,  to  royal  decrees  and  military  orders,  which  modify 
the  procedure  prescribed  by  the  code,  it  is  thought  will  also  aid  in 
making  the  work  of  practical  use,  both  for  those  who  desire  to  inform 
themselves  as  to  the  methods  of  Spanish  procedure  and  those  called 
upon  to  practice  before  the  courts  in  the  islands  of  Cuba  and  Porto 
Rico. 

They  beg  further  to  explain  that,  as  this  translation  was  sent  to  the 
printer  by  parts,  as  fast  as  they  were  concluded,  and  then  at  once  put 
into  plates,  it  became  impossible  for  them  to  modify  in  time  some 
expressions,  which  may  perhaps  give  occasion  for  criticism. 

The  principal  changes  intended  by  them  to  be  made  in  their  work 
are  the  following: 

In  the  first  title,  on  page  1,  they  said:  "appearance  in  an  action," 
while  it  might  have  been  better  to  say  "appearance  in  court,"  as  it 
relates  to  voluntary  as  well  as  contentious  jurisdiction. 

Page  1,  line  13,  read:  umay  appear  in  court." 

Page  2,  line  1,  read:  "appearance  in  court." 

Page  7,  Section  II:  Instead  of  "legal  aid  to  the  poor"  it  might  be 
better  to  say  "proceedings  in  forma  pauperis" 

Page  32, Title  III,  read:  "Civil  remedies  against  actions  of  ecclesi- 
astical authorities." 

Page  74,  line  16,  instead  of  "voted  in  chamber"  read  "voted  in 
court"  as  the  former  expression  would  lead  one  to  believe  that  the 
voting  was  secret. 
5190 ii 

IX 


X  INTRODUCTORY    NOTE. 

Page  106,  Section  IV:  Read  "copies  of  papers  and  documents  and 
the  purposes  for  which  they  are  filed,"  instead  of  "  and  their  purposes." 
Page   106,  article   514,  first  line:  "every   instrument"   should   be 
made  to  read  "every  petition." 

Page  125,  first  line,  subdivision  2,  article  597:  For  "ancient  public 
instruments  "  read  ' '  ancient  deeds. " 

FRANK  L.  JOANNINI,  Official  Translator. 
M.  E.  BEALL,  Assistant. 
JANUARY,  1901. 

I  hereby  certify  that  the  following  is  a  copy  of  the  translation  of 
the  Law  of  Civil  Procedure  for  Cuba  and  Porto  Rico  on  file  in  the 
Division  of  Insular  Affairs,  War  Department,  made  by  the  official 
translators  thereof. 

CLARENCE  R.  EDWARDS, 
Lieutenant-  Colonel  Forty -seventh  Infantry,  U.  8.   V. 

Chief  of  Division. 


ROYAL  DECREE. 

EXCELLENCY:  His  Majesty  the  King  (whom  God  preserve)  has 
on  this  date  deemed  proper  .to  issue  the  following  decree: 

"Thqj  General  Codification  Commission  of  the  Colonial  Department 
having  concluded  the  study  of  the  changes  advisable  in  the  Law  of 
Civil  Procedure  in  force  in  the  Peninsula,  for  its  application  to  the 
Islands  of  Cuba  and  Porto  Rico,  upon  the  recommendation  of  the 
respective  Minister,  with  the  advice  and  consent  of  said  Commission, 
and  making  use  of  the  authority  granted  my  government  by  article  89 
of  the  fundamental  law  of  the  Kingdom, 

"I  hereby  decree  the  following: 

"Article  1.  The  annexed  Law  of  Civil  procedure  amended  for  the 
Islands  of  Cuba  and  Porto  Rico  is  approved. 

"Art.  2.  Said  law  shall  go  into  effect  in  both  Islands  upon  the  1st 
day  of  January  of  the  year  1886. 

"Art.  3.  For  the  survey  and  demarcation  of  estates  owned  in  com- 
mon (haciendas  comurwas),  the  Courts  shall  continue  to  apply  the  pro- 
visions of  the  Regulations  of  March  6,  1819,  and  the  articles  added 
thereto  by  the  Audiencia  of  Puerto  Principe,  in  so  far  as  not  substi- 
tuted or  modified  by  the  provisions  contained  in  title  15,  book  3  of 
the  annexed.law,  without  prejudice  to  the  changes  which  the  Govern- 
ment, after  the  proper  investigation,  may  decree  hereafter  relating  to 
said  regulations. 

"Given  in  the  Palace  on  the  25th  day  of  September,  1885.— 
ALFONSO.  Manuel  Aguirre  de  Tejada,  Minister  for  the  Colonies." 

Which  I  communicate  to  Your  Excellency  by  Royal  order  for  your 
information  and  other  purposes.  May  God  preserve  Your  Excel- 
lency many  years. 

Madrid,  September  25,  1885. 

TEJADA. 

To  the  GOVERNORS-GENERAL  OF  CUBA  AND  PORTO  Rico. 


LAW  OF  CIVIL  PROCEDURE. 


BOOK  I. 

PROVISIONS  COMMON  TO  CONTENTIOUS  AND  VOLUNTARY 
JURISDICTION.1 

TITLE  I. 

APPEAEANCE  IN  AN  ACTION. 

ARTICLE  1.  He  who  is  obliged  to  appear  in  a  proceeding  in  ques- 
tions of  contentious  as  well  as  in  those  of  voluntary  jurisdiction,  shall 
do  so  before  the  competent  judge  or  court  in  the  manner  prescribed 
by  this  law. 

SECTION  I. — Litigants,  solicitors,  and  attorw.eys? 

ART.  2.  Only  such  persons  as  are  in  the  full  exercise  of  their  civil 
rights  may  appear  in  an  action. 

The  legal  representatives,  or  those  who,  according  to  law,  are  to 
supply  the  want  of  capacity  of  persons  not  included  in  the  aforesaid 
conditions,  shall  appear  for  them. 

The  legal  representatives  of  corporations,  associations,  and  other 
judicial  entities  shall  appear  for  them.3 

1  Contentious  jurisdiction,  that  jurisdiction  exercised  when  one  invokes  the  aid  of 
the  law  against  one  that  disputes  his  demands,  as  distinguished  from  voluntary  jurisdic- 
tion, when  the  person  having  the  right  to  resist  the  demand  appears  as  a  consenting 
applicant. — Century  Dictionary. 

2  The  distinction  between  procurador  and  abogado  is  not  in  every  particular  that 
between  solicitor  and  attorney,  but  the  translation  conveys  the  idea.     The  procurador 
is  not  a  lawyer,  although  his  signature  to  the  pleadings  is  essential,  excepting  in 
certain  cases  as  prescribed  in  the  law. 

s  Without  attempting  a  full  enumeration,  and  referring  to  article  534  of  this  law,  the 
persons  who  can  not  appear  in  an  action,  and  consequently  who  can  not  grant 
powers  of  attorney  to  others  to  appear  in  their  behalf,  unless  it  be  with  the  interven- 
tion of  their  legal  represetatives,  are  the  following: 

Minors  who  are  orphans  are  legally  represented  by  their  guardians  ( Civil  Code,  art. 
262} ,  who  in  certain  cases  require  the  consent  of  the  family  council.  (Ibid,  269,  Nos.  12 
tturJ  13.}  If  the  interests  of  the  guardian  are  opposed  to  those  of  the  orphan,  as,  for 
example,  in  the  case  of  number  9  of  article  237  of  the  Civil  Code,  the  representation 
the  minor  in  court  pertains  to  the protutor.  (Ibid,  236,  number  2.} 

Cliilflri'ii.  not  ,'in<iiirii)fiti'<J  are  represented  by  their  parents  (Civil  Code,  art.  155},  and 
when  said  parents  have  an  interest  which  is  incompatible  with  those  of  their  children, 
5190 1  ! 


2  LAW    OF    CIVIL    PKOCEDURE. 

ART.  3.  Appeai-M'H".-  in  an  action  sl|i,il!  be  made  through  a  solicitor, 
(procurador)  legally  qualified  to  act  before  the  superior  or  inferior 
court  taking  cognizance  of  the  action,  and  having  a  power  declared 
sufficient  by  an  attorney.2 

the  latter  shall  be  represented  by  the  next  friend  referred  to  in  article  165.  If  the 
parents  are  deprived  of  the  parental  authority,  or  if  it  be  suspended  (Civil  Code, 
articles  70,  paragraph  3;  7 3,  par.  2,  of  number  2,  and  168  to  171),  the  guardian  appointed 
will  represent  the  children. 

Minors  emancipated  by  the  concession  of  the  father  or  mother  are  represented  in  court 
by  their  parents,  or,  in  their  absence,  by  a  guardian.  (Articles  314,  number  3,  and  317 
of  the  Civil  Code.) 

Minors  who  obtain  the  benefit  of  majority  by  concession  of  the  family  council  are  repre- 
sented by  a  guardian.  (Civil  Code,  articles  322  to  324  and  317,  above  referred  to.) 

Married  persons  over  18  years  of  age  may  appear  in  person  in  court  in  their  own 
name  and  in  that  of  their  wives,  according  to  articles  59  and  315  of  the  Civil  Code, 
which  must  be  understood  in  this  manner,  because  the  emancipation  referred  to 
in  article  317  relates  to  that  of  number  3  of  article  314. 

Persons  sufferring  interdiction  or  undergoing  a  sentence.  (See  articles  228,  229,  262,  269, 
numbers  12  and  13,  and  274  of  the  Civil  Code,  and  the  proper  articles  of  the  Penal 
Code.) 

The  deaf  and  dumb  and  the  insane  are  legally  represented  by  their  guardian  or,  in 
a  proper  case,  by  the  next  friend  appointed  by  the  court  or  by  the  public  prose- 
cutor.— Civil  Code,  articles  215,  number  3;  262,  269,  numbers  12  and  13,  and  274. 

In  actions  relating  to  prodigals,  when  the  defendant  does  not  appear,  he  shall  be 
represented  by  the  public  prosecutor  or,  in  a  proper  case,  by  the  next  friend  appointed 
by  the  court. — Civil  Code,  article  223. 

Married  woman. — The  cases  in  which  she  does  and  does  not  require  the  permission 
of  her  husband  to  appear  in  an  action  are  mentioned  in  articles  60  and  1387  of  the 
Civil  Code. 

Bankrupts. — After  a  declaration  in  bankruptcy,  the  bankrupts  are  disqualified  from 
administering  any  of  their  property  (1161  of  this  law  and  1914  of  the  Civil  Code),  and 
consequently  are  deprived  of  the  full  exercise  of  their  civil  rights.  The  depositary- 
administrator  is  the  legal  representative  of  the  estate  of  the  bankrupt  (law,  art.  1183) 
until  trustees  are  appointed.  After  this  has  been  done  the  trustees  represent  the 
bankrupt  in  court,  defending  his  rights  and  taking  the  actions  and  exceptions  incum- 
bent upon  them. — Civil  Code,  article  1183,  rule  1. 

Judicial  persons  (corporations,  associations,  and  other  judicial  entities). — Towns  and 
municipalities  are  represented  by  the  procuradores  sindicos,  and  in  towns  annexed  to 
others  in  order  to  constitute  a  municipality,  the  presidents  of  their  administrative 
boards  also  represent  the  respective  towns,  when  actions  or  rights  are  involved  which 
pertain  exclusively  to  the  said  towns. — Articles  56  and  90  of  the  law  of  1877,  and  Royal 
order  of  January  30,  1875. 

Provinces  were  represented  by  the  provincial  deputy,  appointed  for  the  purpose  in 
accordance  with  article  37  of  the  law  of  September  25,  1863;  afterwards  they  were 
appointed  by  the  governor,  in  accordance  with  articles  9  and  70  of  the  law  of  October 
2,  1877,  and  subsequently  by  the  vice-president  of  the  provincial  commission,  in 
accordance  with  article  98,  number  6,  of  the  law  of  August  29,  1882. 

The  public  treasury  has  been  represented  by  the  department  of  public  prosecution 
in  the  manner  prescribed  by  the  decree  of  July  9,  1869,  and  by  the  order  of  the  same 
date;  but  since  the  decree  of  March  16,  1886,  it  is  represented  by  the  state  attorneys. 

2  According  to  a  civil  order,  dated  April  23,  1900,  the  intervention  of  solicitors 
has  ceased  to  be  obligatory  in  Cuba.  (See  order  in  Appendix.) 


LAW    OF    CIVIL    PROCEDURE.  8 

The  power  must  be  attached  to  the  first  document  submitted,  which 
shall  not  be  accepted  without  this  requisite,  even  though  it  contains  a 
promise  to  submit  it.1 

ART.  ±.  Notwithstanding  the  provisions  contained  in  the  foregoing 
article,  the  parties  in  interest  may  appear  in  person  or  through  their 
administrators  or  general  attorneys  (but  can  not  make  use  of  the  services 
of  persons  who  are  not  qualified  solicitors  in  towns  where  there  are 
such) : 

1.  In  actions  to  avoid  litigation  (actos  de  coneiliacion). 

2.  In  actions  of  which  municipal  judges  take  cognizance  in  first 
instance.2 

3.  In  actions  involving  interests  of  between  250  and  3,000  pesetas 
(de  inenor  cwmtia). 

4.  In  actions  before  arbitrators  or  friendly  compromisers. 

5.  In  proceedings  involving  various  interests  (judos  universales) 
when  the  appearance  is  limited  to  the  filing  of  creditors'  claims  or 
demands,  or  to  attend  meetings. 

6.  In  pauper  applications,  incidental  to  an  action,  temporary  sup- 
port, cautionary  attachments,  and  urgent  measures  preliminary  to  the 
action. 

7.  In  proceedings  of  voluntary  jurisdiction. 

When  the  parties  in  interest  do  not  appear  in  person,  or  by  their 
general  agents  or  representatives,  they  shall  employ  a  duly  qualified 
solicitor,  in  towns  where  there  are  such. 

In  the  absence  of  a  qualified  solicitor,  they  shall  appoint  as  their  rep- 
resentative any  resident  of  the  town,  of  full  age,  in  the  enjoyment  of 
his  civil  rights,  and  able  to  read  and  write  correctly,  giving  him  the 
proper  power  of  attorney. 

ART.  5.  The  acceptance  of  the  power  is  presumed  from  the  fact  of 
its  use  by  the  solicitor. 

After  the  power  has  been  accepted,  it  becomes  the  duty  of  the 
solicitor — 3 

1  The  appearance  of  a  solicitor  in  an  action  shall  not  be  justified  by  means  of  a  cer- 
tificate stating  that  a  sufficient  power  is  attached  to  other  papers,  when  said  certifi- 
cate is  not  properly  authenticated  by  the  competent  official. — Decision  of  November 
21,  1892. 

*Instanda:  The  institution  and  prosecution  of  a  suit  from  its  inception  until  defi- 
nite judgment.  The  first  instance  is  the  prosecution  of  the  suit  before  the  judge 
competent  to  take  cognizance  of  it  at  its  inception;  the  second  instance  is  the  exer- 
cise of  the  same  action  before  the  court  of  appellate  jurisdiction,  and  the  third 
instance  is  the  prosecution  of  the  same  suit,  either  by  an  application  of  revision 
before  the  appellate  tribunal  that  has  already  decided  the  cause  or  before  some 
higher  tribunal  having  jurisdiction  of  the  same. — Bouvier's  Law  Dictionary,  Rawle's 
revision,  Boston,  1897. 

3  Solicitors  can  not  acquire  by  purchase  or  cession  any  of  the  property  or  rights 
which  may  be  the  subject  of  an  action  in  which  they  appear  by  reason  of  their  office. — 
<  '/V/7  Code,  art.  1469. 


4  LAW    OF    CIVIL    PROCEDURE. 

1.  To  prosecute  the  action  until  he  ceases  taking  part  therein  for 
any  of  the  causes  mentioned  in  article  9. 

2.  To  forward  to  the  attorney  selected  by  his  client  or  by  himself, 
when  so  authorized  by  the  power,  all  documents,  data,  and  instruc- 
tions which  may  be  transmitted  to  him  or  which  he  may  acquire,  doing 
everything  possible  to  defend  the  interests  of  his  client,  under  the 
liability  imposed  by  law  upon  agents. 

Should  he  have  no  instructions  or  should  those  given  by  his  client 
not  be  sufficient,  he  shall  take  such  action  as  may  be  required  by  the 
nature  or  character  of  the  business. 

3.  To  recover  from  the  attorney  who  may  have  ceased  administer- 
ing a  business,  the  copies  of  the  instruments,  documents,  and  other 
data  which  may  be  in  his  possession,  for  the  purpose  of  delivering 
them  to  the  person  succeeding  him  in  said  administration. 

4:.  At  all  times  to  keep  his  client  and  the  attorney  informed  of  the 
progress  of  the  business  entrusted  to  him,  and  deliver  to  the  latter 
copies  of  all  decisions  of  which  he  may  be  notified. 

5.  To  pay  all  the  expenses  or  costs  caused  at  his  instance,  including 
the  lawyers'  fees,  even  though  the  latter  should  have  been  appointed 
by  his  principal.1 

AKT.  6.  While  the  solicitor  continues  in  the  discharge  of  his  duties 
he  shall  receive  and  sign  the  summons,  citations,  orders,  and  notifica- 
tions of  all  kinds,  including  those  of  judgments  served  on  him  during 
the  course  of  the  action  and  until  the  judgment  has  been  executed, 
which  acts  shall  have  the  same  force  as  if  the  principal  had  taken  a 
direct  part  therein,  and  he  can  not  request  that  said  matters  be  sent 
directly  to  his  principal. 

The  following  are  excepted: 

1.  The  summons,  citations,  and  orders  which  the  law  requires  to  be 
served  on  the  parties  interested  in  person. 

2.  Citations  which  require  the  compulsory  presence  of  the  person 
cited.2 

ART.  7.  If,  after  a  legal  proceeding  has  been  instituted,  the  princi- 
pal does  not  furnish  to  his  solicitor  the  funds  necessary  to  prosecute 
it,  the  latter  may  request  that  he  be  judicially  compelled  to  do  so. 

This  application  shall  be  made  to  the  superior  or  inferior  court 
taking  cognizance  of  the  case,  which  shall  grant  the  same,  fixing  the 
amount  it  considers  necessary  and  the  term  within  which  it  is  to  be 
furnished,  under  admonition  of  judicial  compulsion  (apercibimiento  de 
apremio). 

1  All  costs  specified  in  the  schedule  have  the  character  of  judicial  costs  (Decision 
of  May  10,  1882],  and  they  shall  always  be  preferred  and  must  not  be  confounded 
with  credits  of  private  individuals. — Decision  of  March  31,  1886. 

2 The  citations,  summons,  etc.,  served  on  the  solicitor  while  he  continues  in  his 
office  have  the  same  force  of  law  as  if  served  on  the  principal  himself. — Decision  of 
May  23,  1878. 


LAW    OF    CIVIL    PROCEDURE.  5 

AKT.  8.  When  a  solicitor  is  compelled  to  demand  of  his  tardy 
principal  the  amounts  which  the  latter  owes  him  for  his  fees  and  for 
the  expenses  he  may  have  incurred  in  the  action,  he  shall  present  to 
the  superior  or  inferior  court  taking  cognizance  of  the  question  a 
detailed  account,  with  the  proper  vouchers,  and  shall  take  oath  that 
the  amounts  appearing  therein  and  claimed  by  him  are  due  and  unpaid; 
upon  which  the  court  or  judge  shall  order  that  the  principal  be  required 
to  pay  the  same,  with  the  costs,  within  a  period  not  to  exceed  ten  days, 
under  admonition  of  judicial  compulsion. 

The  heirs  of  solicitors  shall  have  the  same  rights  as  the  solicitors 
themselves  with  regard  to  credits  of  this  character  which  may  be  left 
by  the  latter. 

After  the  payment  has  been  made,  the  debtor  may  demand  satisfac- 
tion for  any  injury,  and  if  it  should  appear  that  the  solicitor  has  pre- 
sented an  excessive  account  he  shall  return  double  the  amount  of  the 
excess,  with  all  costs  arising  up  to  the  time  when  full  settlement  for 
the  injury  is  made.1 

ART.  9.  The  solicitor  shall  cease  to  represent  his  principal— 

1.  By  reason  of  the  express  or  implied  revocation  of  the  power,  as 
soon  as  said  revocation  is  entered  in  the  record.     Said  power  shall  be 
considered  as  impliedly  revoked  by  the  subsequent  appointment  of 
another  solicitor  who  shall  appear  in  the  same  proceeding. 

2.  When  the  solicitor  shall  voluntarily  abandon  the  matter,  or  dis- 
continue the  practice  of  his  profession;   in  either  case  he  shall  be 
obliged  to  give  timely  notice  to  his  principals,  either  judicially  or  by 
means  of  a  notarial  instrument. 

Until  the  cessation  for  either  of  the  two  above-mentioned  reasons 
shall  appear  in  the  record  and  be  declared,  the  solicitor  can  not  aban- 
don the  representation  he  may  have. 

3.  When   the   principal  has  withdrawn  from   the  prosecution  or 
defense  made  by  him. 

4.  When  the  principal  shall  transfer  to  another  his  interests  in  the 
matter  in  litigation,  as  soon  as  the  transfer  has  been  recognized  by  a 
resolution  or  final  ruling,  with  a  hearing  of  the  opposite  party. 

1  When  a  power  is  granted  as  a  legal  representative  of  a  third  person,  the  latter 
must  be  considered  as  the  principal  and  his  heirs  are  the  real  debtors  against  whom 
the  solicitor  must  bring  his  action. — Decision  of  June  8,  1886. 

According  to  a  royal  decree  of  September  25,  1889,  the  provisions  contained  in 
this  article  are  not  applicable  to  municipalities,  in  accordance  with  the  provisions  of 
article  143  of  the  municipal  law  of  October  2,  1877 .—Decision  of  September  25,  1887. 

The  chamber  of  the  audiencia  in  requiring  a  solicitor  to  pay  double  the  excess 
charged  in  a  sworn  account  has  correctly  applied  the  third  paragraph  of  article  8, 
on  which  the  debtor  based  his  right;  because  the  declaration  to  the  effect  that  the 
account  was  excessive  necessarily  carries  with  it  as  a  penalty  the  return  of  double 
the  excess  and  the  payment  of  all  the  costs  arising  until  full  settlement  for  the  injury 
is  made. — Decision  of  October  4,  1888. 


6  LAW    OF    CIVIL    PROCEDURE. 

5.  When  the  character  in  which  the  principal  appeared  in  the  action 
has  ceased. 

6.  Upon  the  conclusion  of  the  action  or  proceeding  for  which  the 
power  was  given,  if  given  for  that  specific  purpose  only. 

7.  By  reason  of  the  death  of  the  principal  or  of  the  solicitor. 

In  the  former  case  the  solicitor  shall  be  obliged  to  inform  the  judge 
or  court  of  the  occurrence  as  soon  as  he  receives  notice  thereof,  duly 
proving  the  death,  in  order  that  his  representation  may  be  considered 
as  ended,  and  if  a  new  power  executed  by  the  heirs  or  representatives 
of  the  deceased  should  not  be  presented,  the  judge  or  court  shall  order 
that  they  be  cited  to  appear  in  the  proceedings  within  the  period  which 
may  be  fixed,  under  the  proper  admonition. 

If  the  solicitor  should  die,  the  principal  shall  be  informed  thereof,  for 
the  purposes  mentioned.1 

ART.  10.  The  litigants  shall  be  guided  by  attorneys  legally  qualified 
to  practice  their  profession  in  the  superior  or  inferior  court  taking 
cognizance  of  the  proceedings.  No  petition  shall  be  acted  upon  which 
does  not  bear  the  signature  of  an  attorney. 

The  following  are  the  only  exceptions: 

1.  Proceedings  to  avoid  litigation. 

2.  Actions  of  which  municipal  j  udges  take  cognizance  in  first  instance. 

3.  Proceedings  of  voluntary  jurisdiction. 

In  the  last  case  the  aid  of  attorneys  is  discretional. 

4.  Instruments  for  the  purpose  of  entering  an  appearance  in  an 
action,  requesting  judgment  in  default,  judicial  compulsion,  extension 
of  time,  publication  of  evidence,  fixing  of  hearings,  their  suspension, 
appointment  of  experts,  and  any  other  acts  of  mere  practice. 

When  the  suspension  of  hearings,  extension  of  time,  or  action 
requested  is  based  on  causes  which  relate  specially  to  the  attorney, 
the  latter  shall  also,  if  possible,  sign  the  instrument. 

ART.  11.  Notwithstanding  the  provisions  contained  in  articles  4  and 
10,  the  solicitors  as  well  as  the  attorneys  may  attend  a  proceeding  to 
avoid  litigation  in  the  character  of  representatives  or  homhres  ~buenos? 
or  as  assistants  of  the  persons  interested  in  oral  actions,  when  the  par- 
ties interested  spontaneously  desire  to  make  use  of  their  services. 

In  such  cases,  if  the  costs  be  taxed  in  favor  of  the  party  who  has 
made  use  of  a  solicitor  or  attorney,  they  shall  not  include  the  fees  of 
either.3 

ART.  12.  The  attorneys  may  demand  from  the  solicitor,  and,  if  the 

1  The  course  of  an  action  in  which  two  persons  have  the  same  representative 
must  not  be  interrupted  on  account  of  one  of  the  parties  revoking  the  power  he  has 
given  the  solicitor. — Decision  of  October  20,  1882. 

2  In  matters  of  conciliation,  it  applies  to  the  two  persons,  one  chosen  by  each  party, 
to  assist  the  constitutional  alcalde  in  forming  his  judgment  of  reconciliation,  Art.  1, 
chap.  3,  Decree  of  October  9,  1812. 

3  See  article  424  of  this  law. 


LAW    OF    CIVIL    PROCEDURE.  7 

latter  .should  not  have  taken  part  in  the  action,  from  the  person  whose 
defense  they  conduct,  the  payment  of  the  fees  they  may  have  earned 
in  the  action,  presenting  a  detailed  memorandum  thereof  and  taking 
oath  that  the}^  are  unpaid. 

When  this  application  is  made  in  time,  the  judge  or  court  shall  admit 
it  in  the  manner  prescribed  in  article  8;  but  if  the  debtor  should  allege 
that  the  fees  are  excessive,  they  shall  first  be  regulated,  in  accordance 
with  the  provisions  of  articles  426  et  seq.1 

SECTION  II.  —  Legal  aid  to  the  poot\ 

ART.  13.  Justice  shall  be  gratuitously  administered  to  poor  persons 
who  have  been  declared  as  entitled  to  this  benefit  by  a  superior  or 
inferior  court.2 

ART.  14.  Persons  declared  poor  shall  enjoy  the  following  privileges: 

1.  The  right  to  use  in  their  defense  stamped  paper  of  their  class. 

2.  The  right  to  have  an  attorney  and  a  solicitor  appointed,  without 
being  obliged  to  pay  them  any  fees  or  charges. 

3.  Exemption  from  the  payment  of  all  kinds  of  charges  to  the  assist- 
ants and  subaltern  officials  of  the  superior  and  inferior  courts. 

4.  To  give  promise  under  oath  to  pay  if  their  fortune  should  improve, 
instead  of  making  the  deposits  necessary  in  order  to  request  and  obtain 
relief. 

5.  The  right  to  have  all  letters  rogatoiy  and  other  communications 
requested  by  them  acted  upon,  and  complied  with  de  oficio,  should 
they  demand  it.3 

ART.  15.  The  following  only  can  be  declared  poor: 

1.  Those  who  depend  for  a  living  upon  an  uncertain  wage 


action  is  barred  after  three  years  (according  to  article  1967  of  the  Civil 
Code)  ;  but  the  appointment  of  an  attorney  at  a  stated  salary  for  any  services  which 
may  be  required  is  an  industrial  lease  contract,  the  actions  relating  to  which  are  not 
barred  for  twenty  years,  as  all  personal  actions  according  to  law  5,  title  8,  book  11, 
of  the  Novisima  Recopilacion.  —  Decision  of  December  21,  1885. 

The  Civil  Code  fixes  15  years  for  the  prescription  of  personal  actions  for  which  a 
special  period  of  prescription  is  not  fixed  (art.  1964]- 

2  According  to  various  administrative  provisions  and  decisions  of  the  supreme  court, 
charitable  institutions,  as  well  as  religious  schools,  must  be  considered  poor  persons 
(Royal  Order  of  December  21,  1857}  . 

Parochial  churches  do  not  enjoy  this  privilege  unless  they  prove  that  they  are  poor. 

With  regard  to  foreigners  there  is  some  doubt  as  to  this  question  ;  but  the  ordinary 
and  reasonable  interpretation  is  that  they  may  enjoy  this  privilege,  as  they  are  granted 
the  same  civil  rights  as  Spaniards;  but  in  order  to  avoid  doubts,  some  treaties  make 
an  express  stipulation  to  this  effect. 

3  According  to  the  Royal  order  of  August  31,  1863,  still  in  force  on  the  subject, 
there  shall  be  inserted  free  of  charge  in  the  proper  Diarios  OJiciales  such  judicial 
notices  which  are  required  by  the  nature  of  the  proceeding.     When  the  publication 
is  to  take  place  in  the  Boletin  Ofitial,  the  announcement  shall  be  forwarded  to  the 
governor  of  the  respective  province. 


LAW    OF    CIVIL    PROCEDURE. 

2.  Those  who  depend  for  a  living  upon  a  permanent  salary  or  wage, 
from  whatsover  source  derived,  which  does  not  exceed  double  that 
received  by  a  laborer  in  the  locality  of  the  habitual  residence  of  the 
applicant. 

3.  Those  who  depend  for  a  living  solely  upon  rents,  farming,  or 
stock  raising  the  proportionate  proceeds  of  which  do  not  exceed  the 
wages  of  two  laborers  in  the  place  of  their  habitual  residence. 

4.  Those  who  gain  their  livelihood  solely  through  the  exercise  of  an 
industry  or  from  the  product  of  any  commerce  on  which  they  pay  a 
tax  lower  than  that  fixed  in  the  following  scale: 

In  the  city  of  Havana,  150  pesetas. 

In  the  capitals  of  the  other  provinces  of  the  island  of  Cuba,  100 
pesetas. 

In  the  capital  of  the  island  of  Porto  Rico,  100  pesetas. 

In  the  seats  of  judicial  districts  of  the  islands  of  Cuba  and  Porto 
Rico,  50  pesetas. 

In  the  other  towns  of  both  islands,  25  pesetas. 

5.  Those  who  have  all  their  property  under  attachment,  or  who  have 
made  a  judicial  assignment  thereof  to  their  creditors,  and  who  are  not 
engaged  in  any  industry,  trade,  or  profession,  and  not  included  in  the 
provisions  of  article  17. 

In  such  cases,  if  any  property  should  remain  after  the  creditors  have 
been  paid,  it  shall  be  applied  to  the  payment  of  the  costs  incurred  at 
the  instance  of  the  debtor  represented  as  a  poor  person.1 

1  (a)  This  article  must  be  understood  as  subordinated  to  article  17,  and  therefore 
it  is  proper  to  refuse  the  benefit  if  the  court  shall  deduce  from  the  visible  signs  of 
wealth  that  the  applicant  has  means  which  exceed  double  the  wages  of  a  laborer. — 
Decisions  of  the  Supreme  Court  of  February  18,  1870;  September  22,  November  18  and  21, 
1879;  January  10,  March  29,  and  June  24-,  1880;  February  11,  1881;  December  15,  1883, 
and  others. 

(6)  An  appeal  for  annullment  of  judgment  does  not  lie  from  the  decision  granting 
permission  to  prosecute  or  defend  as  a  poor  person. — Decision  of  May  10,  1881. 

(c)  A  person  who  lives  exclusively  on  a  pension  of  20  reales  per  day,  left  her  by 
will  for  herself  and  her  three  children,  must  be  granted  this  right. — Decision  of  Octo- 
ber 25,  1880. 

(d)  In  order  to  decide  whether  the  person  requesting  permission  to  prosecute  or 
defend  as  a  poor  person  who  has  acted  in  his  own  name  is  entitled  thereto  or  not, 
there  can  not  be  taken  into  consideration  the  tax  which  he  pays  as  the  manager  of 
an  association. — Decision  of  September  9,  1882. 

(e)  The  refusal  to  grant  the  benefit  can  not  be  based  on  the  fact  that  the  person 
interested  should  pay  an  industrial  tax  of  40  pesetas  per  annum,  although  he  does 
not  do  so,  the  courts  being  obliged  to  consider  only  whether  the  tax  is  or  is  not  paid 
or  without  being  allowed  to  declare  that  it  should  or  should  not  be  paid,  which  is  a 
matter  of  the  exclusive  jurisdiction  of  the  administration. — Decision  of  October  31, 1884> 

(/)  The  habitual  residence  referred  to  in  article  15  of  the  Law  of  Civil  Procedure, 
for  the  purposes  of  the  benefit  of  poverty,  must  be  that  which  the  person  interested 
has  at  the  time  he  requests  said  benefit,  and  not  the  place  where  he  may  have  resided 
for  a  longer  period  in  former  times. — Decision  of  May  30,  1883. 


LAW    OF    CIVIL    PEOCEDUBE.  9 

ART.  It).  When  a  person  has  two  or  more  of  the  means  of  livelihood 
mentioned  in  the  foregoing  article,  all  of  them  shall  be  included  in 
the  computation  of  the  income,  and  permission  to  prosecute  or  defend 
as  a  poor  person  shall  not  be  granted  him  if  the  total  thereof  exceeds 
the  amounts  fixed  in  the  foregoing  article. 

ART.  17.  Permission  to  prosecute  or  defend  as  a  poor  person  shall 
not  be  granted  to  a  person  included  in  any  of  the  cases  mentioned  in 
article  15,  when  it  appears  to  the  ]udge  from  the  number  of  domestics 
in  his  service,  the  rent  of  his  residence,  or  from  any  other  visible  signs, 
that  his  means  exceed  an  amount  equal  to  twice  the  wages  of  a  laborer 
in  his  respective  locality.1 

ART.  18.  Neither  shall  permission  to  prosecute  or  defend  as  a  poor 
person  be  granted  to  a  litigant  who  enjoys  an  income  which,  added  to 
that  of  his  spouse,  or  to  that  arising  from  the  property  of  his  children, 
the  usufruct  of  which  he  enjoys,  amounts  altogether  to  a  sum  equiva- 
lent to  the  wages  of  three  laborers  at  the  place  of  the  habitual  resi- 
dence of  the  family.2 

(g)  All  litigants  shall  be  considered  wealthy  until  they  prove  the  contrary. — 
Decision  of  November  12,  1883. 

(7t)  It  is  incumbent  upon  the  litigant  to  prove  the  amount  of  the  wages  of  a  laborer 
in  his  locality. — Decision  of  June  3,  1887. 

(i)  The  children  born  of  a  first  marriage  of  a  woman  whose  husband  is  wealthy 
are  entitled  to  the  benefit  of  poverty,  because  the  conjugal  property  of  the  second 
marriage  is  not  liable  for  the  litigation  instituted  in  the  interest  of  the  issue  of  the 
first  marriage. — Decision  of  April  18,  1893. 

(j)  The  benefit  of  poverty  is  individual  and  does  not  extend,  therefore,  to  any 
collectivity,  such  as  industrial  and  commercial  associations,  unless  each  and  every 
one  of  their  members  prove  that  they  are  poor. — Decisions  of  April  15,  1879;  June  3, 
1880,  and  July  9,  1881. 

(k]  A  person  who  is  deprived  of  his  property  by  virtue  of  a  judicial  attachment, 
and  retains  the  product  and  rent  thereof,  can  not  allege  that  all  his  property  is 
attached,  as  required  by  number  5  of  article  15  of  the  Law  of  Civil  Procedure,  for  the 
purpose  of  securing  the  benefits  of  articles  13  and  14  thereof. — Decision  of  October  14, 
1886.  The  same  is  the  case  when  the  property  is  mortgaged  or  given  as  security. — 
Derision  of  September  18,  1865. 

^he  words  "when  it  appears  to  the  judge"  used  in  this  article  do  not  refer  exclu- 
sively to  the  judge  of  first  instance,  but  also  to  the  superior  or  inferior  court  taking 
cognizance  of  the  case. — Decision  of  September  23,  1882. 

2 (a)  The  privilege  to  prosecute  or  defend  as  a  poor  person  shall  not  be  granted  to 
a  woman  who  has  a  wealthy  husband,  because  the  duties  inherent  to  the  marriage 
affect  the  latter. — Decision  of  June  3,  1865. 

(/>)  Neither  shall  it  be  granted  to  the  woman  who  receives  an  income  which, 
together  with  that  of  her  husband,  is  equivalent  to  the  wages  of  two  laborers  (now 
of  three)  in  the  locality  where  they  reside. — Decisions  of  June  17,  1865;  September  18, 
1865;  January  26,  1869,  and  November  16,  1881. 

(c)  In  legal  proceedings  between  spouses,  the  unity  of  person  and  litigant  disap- 
pears, and,  as  a  necessary  consequence,  the  incomes  of  each  can  not  be  added  together, 
nor  can  the  external  signs  be  considered  in  common  for  the  purpose  of  obtaining  a 
sum  of  money,  nor  signs  of  wealth  which  do  not  exist  separately;  but  in  such  cases 
the  poor  woman  having  a  wealthy  husband  has  a  right  to  require  the  husband  to 


10  LAW    OF    CIVIL    PROCEDURE. 

ART.  It).  When  several  persons  individually  entitled  to  defense  as 
poor  persons  unite  in  an  action,  they  shall  be  authorized  to  litigate  as 
such,  even  though  the  united  means  of  all  of  them  exceed  the  amounts 
prescribed. 

ART.  20.  Permission  to  prosecute  or  defend  as  a  poor  person  shall 
be  granted  only  for  the  purpose  of  protecting  one's  own  rights. 

The  assignee  who  has  this  right  can  not  make  use  thereof  to  litigate 
the  rights  of  the  assignor,  or  those  which  he  may  have  acquired  from 
a  third  person  not  having  said  right,  excepting  when  it  was  acquired 
by  virtue  of  an  inheritance. 

ART.  21.  The  declaration  of  poverty  shall  always  be  requested  of 
the  superior  or  inferior  court  taking  cognizance,  or  which  is  compe- 
tent to  take  cognizance  of  the  action  or  business  with  regard  to  which 
said  permission  is  desired,  and  it  shall  be  considered  as  an  issue  inci- 
dental to  the  principal  question.1 

ART.  22.  When  the  person  requesting  the  declaration  of  poverty 
intends  to  institute  an  action,  said  action  shall  not  be  commenced  until 
the  issue  of  poverty  has  been  finally  decided. 

However,  judges  shall  consent  to  the  institution  of  proceedings 
without  costs,  which,  if  postponed,  would  cause  irreparable  injury  to 
the  plaintiff,  but  the  course  of  the  action  must  be  suspended  immedi- 
ately thereafter. 

ART.  23.  When  the  application  to  prosecute  as  a  poor  person  is 
made  by  the  plaintiff  or  to  defend  as  a  poor  person  by  the  defendant 
at  or  after  the  time  of  answering  the  complaint,  the  same  shall  be 
passed  upon  as  a  separate  issue  at  the  cost  of  the  person  making  the 
application. 

In  such  case  the  continuation  of  the  principal  action  may  be  sus- 
pended only  with  the  consent  of  both  parties. 

make  her  an  allowance  for  the  purpose  of  paying  the  costs  of  her  action,  and  even 
though  the  litigation  with  her  husband  extinguishes  the  personal  unity,  it  does  not 
extinguish  the  right  of  the  wife  to  enjoy  the  common  income  which  the  husband 
retains. — Decision  of  June  14,  1887. 

(d)  When  the  father  is  wealthy,  the  son  who  is  under  his  power  can  not  be 
granted  permission  to  litigate  as  a  poor  person  with  a  third  party,  because,  although 
the  right  to  defend  as  a  poor  person  is  personal,  this  principle  does  not  exclude  the 
necessity  of  taking  into  consideration  the  attendant  circumstances  in  special  cases,  as 
is  the  case  with  persons  whose  rights  are  inseparable  from  those  of  others,  such  as 
married  women  and  persons  under  the  patental  power,  and  others. — Decision  of  Feb- 
ruary 16,  1876. 

A  decision  of  September  21 , 1888,  repeats  the  doctrine  that  the  benefit  can  not  be 
granted  to  a  wealthy  father,  in  a  legal  sense,  to  appear  in  an  action  in  the  name  of 
his  poor  children,  because  the  duty  to  defend  the  property  of  the  children  in  court 
is  inherent  to  the  parental  authority. 

lrrhe  issue  of  poverty  raised  and  decided  in  a  court  does  not  determine  the  com- 
petency of  the  same  to  take  cognizance  of  the  main  issue,  the  competency  for  the 
poverty  being  subordinated  to  the  jurisdiction  of  the  principal  action. — Decision  of 
March  5,  1863. 


LAW    OF    CIVIL    PROCEDURE.  11 

ART.  24.  If  the  plaintiff  should  not  have  requested  permission  to 
prosecute  as  a  poor  person  before  bringing  his  action,  and  requests  it 
subsequently,  it  can  not  be  granted  unless  he  duly  proves  that  he  has 
become  poor  after  having  brought  his  action. 

ART.  25.  The  litigant  who  has  not  been  represented  as  a  poor  per- 
son in  the  first  instance,  and  desires  to  enjoy  this  privilege  in  the  sec- 
ond, must  prove  that  subsequently  to  the  former,  or  during  the  course 
thereof,  he  has  reached  a  condition  of  poverty.  Should  he  not  duly 
prove  this  fact,  his  application  shall  not  be  granted.1 

ART.  26.  The  rule  laid  down  in  the  foregoing  article  is  also  applica- 
ble to  a  person  who,  not  having  prosecuted  or  defended  as  a  poor  per- 
son in  the  second  instance,  makes  the  application  to  be  so  represented 
for  the  purposes  of  taking  or  prosecuting  an  appeal  for  annullment  of 
judgment. 

In  such  case  he  shall  be  required  to  make  the  deposit,  if  he  should 
not  have  made  his  application  for  legal  aid  to  the  poor,  before  the  cita- 
tion for  judgment  in  the  second  instance. 

ART.  27.  Any  person  making  formal  application  for  the  declaration 
of  poverty  shall  at  once  be  defended  as  such,  and  an  attorney  and 
solicitor  shall  be  assigned  to  him  deqficio  if  he  should  request  it,  with- 
out prejudice  to  what  may  subsequently  be  decided. 

An  attorney  and  solicitor  shall  also  be  assigned  de  qficio  to  the  per- 
son who  requests  it  for  the  purpose  of  filing  a  petition  to  secure  per- 
mission to  prosecute  or  defend  as  a  po.or  person. 

ART.  28.  This  petition  shall  be  drafted  in  the  manner  prescribed  in 
article  523  for  ordinary  petitions,  and  shall  state  in  addition— 

1.  The  native  town  of  the  petitioner,  his  present  domicile,  and  his 
residence  during  the  previous  five  years. 

2.  His  status  (whether  married  or  single),  age,  profession  or  trade, 
and  means  of  livelihood. 

3.  If  married  or  a  widower,  the  name  and  native  town  of  his  spouse 
and  the  children  he  may  have. 

,     4.  The  house  or  room  in  which  he  resides,  stating  the  street  and 
number  and  the  rent  he  pays. 

5.  The  property  of  his  spouse  and  of  his  children,  the  usufruct  of 
which  he  enjoys  and  the  income  it  produces. 

1  (a )  Permission  to  prosecute  or  defend  as  a  poor  person  may  be  requested  after  the 
conclusion  of  the  second  instance,  and  the  decision,  which  does  not  so  recognize 
violates  the  provisions  of  said  article. — Decision  of  December  9,  1882. 

(b)  The  mortgage  of  all  the  property  belonging  to  a  person  for  the  guaranty  of  a 
loan — that  is,  the  contraction  of  a  mortgage  loan — is  not  sufficient  to  warrant  the 
granting  of  this  benefit,  because  said  action  may  be  explained  by  reasons  of  different 
kinds  and  does  not  prove  that  the  person  who  appeared  as  a  wealthy  person  in  the  first 
instance  has  become  poor  subsequently  thereto,  and  for  the  reason  that  the  mort- 
gage, even  though  under  the  hypothesis  that  it  affects  all  the  property,  can  not  be 
confounded  with  the  total  attachment  of  said  property,  depriving  the  person  of  the 
income  therefrom. — Derision  of  March  12,  1887. 


12  LAW    OP    CIVIL    PROCEDURE. 

().  And  he  shall  attach  a  certificate  issued  by  the  competent  authority 
or  official  that  he  has  not  paid  a  tax  of  any  kind  whatsoever  during  the 
current  fiscal  year  and  the  preceding  one,  or  of  the  amount  he  does 
pay,  attaching  in  the  latter  case  the  receipts  for  the  last  quarter  he 
may  have  paid,  and  another  certificate,  in  a  proper  case,  showing 
whether  he  does  or  does  not  appear  in  the  electoral  lists,  and  if  so,  in 
what  character. 

AKT.  29.  Petitions  which  do  not  contain  the  requisites  mentioned  in 
the  foregoing  article  shall  not  be  admitted. 

If  the  petitioner  shall  allege  that  he  could  not  procure  the  certificates 
mentioned  in  number  6  of  said  article,  the  judge  shall  call  for  them 
de  oficio,  but  the  petition  shall  not  be  taken  into  consideration  until 
they  are  attached  to  the  record. 

ART.  30.  The  petitions  for  permission  to  prosecute  or  defend  as  a 
poor  person  shall  be  heard  and  decided  according  to  the  procedure 
established  for  other  incidental  issues,  with  a  hearing  of  the  opposite 
party  or  parties  and  of  the  representative  of  the  department  of  public 
prosecution  on  behalf  of  the  State. 

If  this  petition  be  filed  before  the  action  is  brought,  those  who  are 
to  make  answer  thereto  shall  be  summoned  to  appear  for  the  purpose 
within  nine  days. 

If  the  opposite  party  should  not  appear  it  shall  be  heard  with 
the  attendance  of  the  representative  of  the  department  of  public 
prosecution. 

ART.  31.  If  the  petition  for  permission  to  prosecute  or  defend  as  a 
poor  person  should  be  denied,  the  costs  of  the  first  instance  shall  be 
taxed  against  the  petitioner. 

In  case  of  an  appeal,  those  of  the  second  instance  shall  be  taxed 
against  the  proper  person  in  accordance  with  law. 

ART.  32.  As  soon  as  the  judgment  is  final,  the  taxation  of  the  costs 
shall  be  made,  including  that  of  the  stamped  paper,  and  they  shall  be 
collected  by  means  of  judicial  compulsion. 

ART.  33.  The  decision  granting  or  refusing  permission  to  prosecute 
or  defend  as  a  poor  person  does  not  produce  the  effects  of  a  res 
judicata. 

At  any  stage  of  the  action  the  party  in  interest  may  raise  a  new 
issue  for  the  revision  or  annulment  thereof,  provided  that  he  secures 
to  the  satisfaction  of  the  judge  the  costs  which  might  be  taxed  against 
him  if  said  action  be  not  successful. 

The  department  of  public  prosecution  shall  not  be  required  to  make 
this  deposit  if  it  raises  said  issue. 

ART.  34.  In  the  case  of  the  foregoing  article  permission  to  prose- 
cute or  defend  as  a  poor  person  shall  not  be  granted  to  a  person  to 
whom  it  has  once  been  denied,  unless  he  shall  fully  prove  that  he  has 
become  poor  subsequent  to  the  decision  which  previously  refused  to 
grant  him  said  privilege. 


LAW    OF    CIVIL    PROCEDURE.  13 

His  new  petition  .shall  not  be  accepted  unless  it  is  based  on  said 
reasons. 

ART.  35.  The  declaration  of  poverty  made  during  one  action  can 
not  be  made  use  of  in  another,  if  the  opposite  party  should  object. 

If  said  party  should  object,  the  hearing  of  the  issue  must  be  renewed, 
a  new  decision  with  regard  to  the  poverty  being  rendered  in  which  the 
objecting  party  shall  be  cited  and  heard. 

ART.  36.  A  declaration  of  poverty  made  in  favor  of  any  litigant 
shall  not  release  him  from  the  obligation  of  paying  the  costs  taxed 
against  him,  if  property  should  be  found  upon  which  to  levy  therefor. 

ART.  37.  If  the  person  granted  permission  to  prosecute  as  a  poor 
person  should  be  successful  in  the  action  which  he  may  have  brought, 
he  shall  be  obliged  to  pay  the  costs  incurred  in  protecting  his  interests, 
provided  that  they  do  not  exceed  one-third  of  the  amount  he  may 
have  obtained  by  virtue  of  the  suit  or  complaint. 

If  the  costs  should  exceed  said  one-third,  they  shall  be  reduced 
proportionately. 

ART.  38.  Should  there  not  be  sufficient  property  to  cover  the  charges 
of  the  treasury  and  the  fees  of  the  attorneys,  solicitors,  and  other 
persons  interested  in  the  costs,  the  proceeds  shall  be  proportionately 
divided  among  them. 

ART.  39.  The  person  granted  permission  to  prosecute  or  defend  as 
a  poor  person  shall  also  be  obliged  to  pay  the  costs  mentioned  in  article 
37  if  within  three  years  after  the  conclusion  of  the  action  his  fortune 
should  improve.1 

His  fortune  shall  be  considered  to  have  improved — 

1.  If  he  has  obtained  a  permanent  salary,  wages,  income,  or  prop- 
erty, or  become  engaged  in  farming  or  stock  raising,  the  profits  of 
which  exceed  an  amount  equal  to  the  wages  of  four  laborers  in  the 
locality. 

2.  If  he  pays  a  tax  amounting  to  twice  the  sum  mentioned  in  num- 
ber 4  of  article  15.2 

•  ART.  40.  A  person  who  has  been  granted  permission  to  prosecute 
or  defend  as  a  poor  person  may  make  use  of  the  services  of  a  solicitor 
and  attorney  selected  by  himself,  if  they  accept  the  charge. 

Should  they  not  do  so  they  shall  be  appointed  by  the  court  (de  oficio), 
but  subject  to  the  provisions  contained  in  the  following  articles. 

ART.  41.  The  person  who  has  obtained  permission  to  prosecute  an 
action  or  file  a  complaint  as  a  poor  person  must  present  to  the  court, 
on  common  paper  or  on  stamped  paper  of  poor  persons,  a  detailed 

1  After  three  years  have  elapsed  the  obligation  to  pay  attorneys,  court  clerks,  etc., 
their  charges  and  fees,  is  prescribed. — Civil  Code,  art.  1967,  par.  1. 

2  As  an  action  demanding  payment  can  not  be  brought  before  there  exists  the  obli- 
gation to  pay,  and  as  poor  persons  are  not  obliged  to  pay  the  fees  until  their  fortune 
betters,  it  is  evident  that  the  period  of  three  years  for  its  limitation  must  be  counted 
from  the  latter  date. — Decision  of  October  15, 1885. 


14  LAW    OF    CIVIL    PROCEDURE. 

statement  of  the  facts  on  which  he  bases  his  right,  and  the  documents 
or  a  description  of  the  manner  in  which  he  intends  to  prove  the  same. 
ART.  42.  As  soon  as  the  person  who  has  obtained  permission  to 
prosecute  and  defend  as  a  poor  person  has  fulfilled  the  provisions  con- 
tained in  the  foregoing  article,  he  shall  be  assigned  a  solicitor  and  an 
attorney  de  oficio  to  act  on  his  behalf  and  in  his  defense,  and  the  record 
shall  be  delivered  to  the  solicitor,  who  shall  hand  it  to  the  attorney 
for  examination. 

AKT.  43.  If  the  attorney  should  consider  that  the  facts  contained  in 
the  statement  are  insufficient,  he  may  request,  within  ten  days,  that  the 
person  interested  be  required  to  amplify  or  elucidate  the  points  which 
he  may  designate. 

AKT.  44.  When,  with  or  without  such  amplification,  the  attorney 
should  consider  that  the  poor  person  has  not  a  good  cause  of  action,  he 
may  withdraw  from  the  defense,  informing  the  court  thereof  within 
ten  days  in  a  succinct  document,  with  the  reasons  for  his  action. 

ART.  45.  In  such  case  the  court  shall  forward  the  record  to  the  Col- 
lege of  Attorneys  (bar  association)  in  order  that  two  practicing  attor- 
neys of  those  who  pay  the  three  highest  tax  quotas  may  give  their 
report  as  to  whether  or  not  the  person  who  has  been  granted  permis- 
sion to  prosecute  as  a  poor  person  has  a  good  cause  of  action. 

Should  there  be  no  college,  the  judge  shall  designate  two  of  the  old- 
est attorneys  of  the  same  court  to  render  said  report,  and  if  there  should 
be  no  qualified  attorneys  he  shall  forward  the  papers  in  the  case  to  the 
nearest  College  of  Attorneys  through  the  proper  judge. 

ART.  46.  If  the  report  of  said  two  attorneys  should  agree  with  that 
of  the  attorney  appointed  de  oficio,  the  person  interested  shall  not  be 
granted  permission  to  prosecute  or  defend  as  a  poor  person  in  said 
matter,  without  prejudice  to  his  right  to  bring  the  action  as  a  wealthy 
person. 

ART.  47.  When  the  two  attorneys,  or  one  of  them,  should  consider 
that  there  is  a  good  cause  of  action,  or  that,  at  least,  the  right  of  the 
person  declared  poor  is  doubtful,  another  attorney  shall  be  assigned 
him  de  qfido,  who  will  be  obliged  to  undertake  the  defense. 

ART.  48.  If  the  defendant  should  be  granted  permission  to  appear  as 
a  poor  person,  and  if  the  attorney  who  is  to  undertake  the  defense 
should  withdraw  therefrom  on  account  of  his  belief  that  said  defendant 
has  not  a  good  cause  of  action,  he  shall  inform  the  court  within  six 
days,  which  shall  order  the  appointment  of  another  attorney. 

If  the  latter  should  also  excuse  himself  for  the  same  reason,  the 
matter  shall  be  placed  in  the  hands  of  fob  promoter  fiscal  (if  he  should 
not  be  a  party),  for  his  statement  as  to  whether  the  poor  person  has  or 
has  not  a  good  cause  of  action. 

If  the  department  of  public  prosecution  were  a  party  this  report 
shall  be  made  by  an  attorney  not  of  poor  persons  selected  by  the  col- 


LAW    OF    CIVIL    PROCEDURE.  15 

lege,  whore  there  is  any,  and  in  the  absence  of  such  college,  by  the 
judge. 

If  tb&  jtromotor  jiscal,  or  the  third  attorney  in  a  proper  case,  should 
consider  that  the  poor  person  has  not  a  good  cause  of  action,  the  obli- 
gation of  the  attorney  to  conduct  the  defense  gratuitously  shall  cease; 
but  if  he  considers  that  the  claim  is  good,  a  third  attorney  shall  be 
appointed  de  qficio,  who  can  not  excuse  himself  from  conducting  the 
defense. 

The  same  shall  be  done  when  the  plaintiff  applies  by  petition  and 
receives  permission  to  prosecute  as  a  poor  person  after  the  complaint 
has  been  answered,  or  in  the  case  of  any  of  the  parties  during  the 
course  of  the  second  instance. 

ART.  49.  Attorneys  who  should  not  make  the  statements  referred  to 
in  articles  43,  44,  and  48  within  the  period  fixed,  shall  be  considered 
as  having  accepted  the  defense  and  can  not  excuse  themselves  except 
for  the  reason  of  having  ceased  to  practice  their  profession. 

ART.  50.  The  attorney  who  has  undertaken  to  conduct  the  defense 
of  a  party  as  a  wealthy  person,  afterwards  declared  poor,  shall  be 
obliged  to  continue  the  defense  in  the  latter  character  when  there  are 
no  attorneys  for  poor  persons  in  the  court,  qualified  to  conduct  it. 

TITLE  II. 

COMPETENCY   AND   QUESTIONS   OF   JTIKISDICTION. 

SECTION  I. — General  provisions. 

ART.  51.  The  ordinary  judicial  courts  shall  be  the  only  ones  compe- 
tent to  take  cognizance  of  civil  disputes  occurring  within  the  territory 
of  the  islands  of  Cuba  and  Porto  Rico  between  Spaniards,  between 
foreigners,  and  between  Spaniards  and  foreigners. 

ART.  52.  The  only  exceptions  from  the  provisions  contained  in  the 
foregoing  article  are  the  preliminary  steps  in  intestate  and  testamentary 
proceedings  with  regard  to  estates  of  soldiers  dying  in  the  field,  and  of 
sailors  belonging  to  the  navy  dying  at  sea,  whose  cognizance  pertains 
to  the  commanders  and  authorities  of  the  army  and  navy. 

These  preliminary  steps  shall  be  confined  to  the  burial  of  and  obse- 
quies over  the  remains  of  the  deceased,  the  making  of  the  inventory, 
and  custody  of  his  property,  books,  and  papers,  and  their  delivery  to 
the  legatees  or  devisees,  or  to  the  heirs  of  the  intestate  within  the  third 
civil  degree,  provided  they  are  of  age  and  there  be  no  objections  made. 

Otherwise,  and  when  the  heirs  have  not  appeared,  or  when  it  should 
be  necessary  to  continue  the  proceedings,  the  papers  shall  be  delivered 
to  a  court  competent  to  take  cognizance  of  the  testamentary  or  intes- 
tate proceedings,  the  property,  books,  and  papers  inventoried  being 
placed  at  the  disposal  of  the  court. 


16  LAW    OF    CIVIL    PROCEDURE. 

ART.  53.  In  order  that  judges  and  courts  may  be  considered  as  having 
jurisdiction  it  is  necessary : 

1.  That  the  right  to  take  cognizance  of  the  action,  or  of  the  proceed- 
ings in  which  they  take  part,  be  vested  by  law  in  the  authority  they 
exercise. 

2.  That  the  right  to  take  cognizance  of  the  action  or  proceeding  be 
vested  in  them  in  preference  to  other  judges  or  courts  of  the  same 
class. 

ART.  54.  Civil  jurisdiction  may  be  vested  in  any  judge  or  court 
which,  by  reason  of  the  matter,  of  the  amount  in  litigation  and  of  his 
or  its  rank  in  the  judicial  service,  may  be  competent  to  take  cognizance 
of  the  matter  submitted  to  the  same. 

ART.  55.  The  judges  and  courts  who  are  competent  to  take  cogni- 
zance of  an  action  shall  also  have  jurisdiction  over  the  exceptions 
taken  therein,  over  counterclaims  in  proper  cases,  over  all  incidental 
issues,  and  to  enforce  their  rulings  and  decisions.1 

SECTION  II. — Rules  to  determine  competency. 

ART.  56.  Any  judge  impliedly  or  expressly  agreed  upon  by  the  liti- 
gants shall  be  competent  to  take  cognizance  of  the  suits  arising  from 
actions  of  all  kinds. 

This  submission,  however,  can  only  be  made  to  a  judge  exercising 
ordinary  jurisdiction  and  who  is  competent  to  take  cognizance  of  ques- 
tions similar  to  and  of  the  same  kind  as  the  one  submitted.2 

ART.  57.  By  an  express  submission  shall  be  understood  that  made 
by  the  parties  in  interest  clearly  and  in  definite  terms  renouncing  their 
own  rights,  and  unequivocally  designating  the  judge  agreed  upon  to 
determine  the  question.3 

1  (a)  The  cognizance  of  a  claim  of  litis  expensas  in  consequence  of  an  ordinary  action 
instituted  by  the  wife  to  compel  the  husband  to  turn  over  to  her  the  administration 
of  the  property  in  addition  to  the  dowry  or  parapherna,  pertains  to  the  judge  by 
whom  the  ordinary  action  should  be  heard. — Decision  of  September  27,  1890. 

(b)  In  an  action  brought  requesting  the  increase  of  alimony,  the  judge  who  orig- 
inally fixed  the  alimony  is  competent,  because  it  is  an  issue  in  the  first  proceeding. — 
Decision  of  October  21,  1887. 

2 (a)  The  judge  or  court  impliedly  or  expressly  agreed  upon  by  the  litigants  shall 
be  competent  to  take  cognizance  of  the  suits  arising  from  the  exercise  of  civil  actions, 
provided  that  he  has  jurisdiction,  etc. — Decisiom  of  April  2,  1877,  April  13, 1891,  Feb- 
ruary 5,  1892,  and  others. 

(V)  The  judge  agreed  upon  by  the  litigants  shall  be  competent  to  take  cognizance 
of  suits  arising  from  the  exercise  of  all  kinds  of  actions. — Decisions  of  April  20,  1887, 
February  5,  1892,  and  others. 

(c)  The  heirs  of  a  person  submitting  to  a  court  can  not  refuse  to  appear  before  the 
same.— Decision  of  October  23,  1882. 

8  If  the  submission  is  made  by  means  of  a  public  instrument,  until  said  instrument 
is  invalidated  by  a  final  judgment,  it  shall  be  of  sufficient  force  to  attribute  compe- 
tency in  the  court  designated  therein. — Decisions  of  February  20,  June  26,  September 
27,  and  October  25,  1880. 


LAW    OF    CIVIL    PROCEDURE.  17 

ART.  58.  An  implied  submission  is  made: 

1.  By  the  plaintiff,  by  the  act  of  filing  his  complaint  before  the  judge. 

2.  By  the  defendant  when,  after  his  appearance  is  entered  in  the 
action,  he  takes  any  further  steps  therein,  except  to  formally  object  to 
the  jurisdiction  of  the  judge  by  decli nature.1 

ART.  59.  In  towns  where  there  are  two  or  more  judges  of  first 
instance,  the  distribution  of  the  business  shall  determine  the  com- 
petency thereof,  and  the  litigants  can  not  for  themselves  select  one  of 
said  judges  to  the  exclusion  of  the  others. 

ART.  60.  The  express  or  implied  submission  to  a  court  for  the  first 
instance  shall  be  understood  as  having  been  made  for  the  second 
instance  to  the  hierarchical  superior  of  the  same,  which  is  to  take 
cognizance  of  the  appeal. 

ART.  61.  In  no  cases  can  the  parties  submit  any  matter  on  appeal  to 
a  judge  or  court  other  than  one  to  which  the  court  which  took  cogni- 
zance of  the  case  in  first  instance  is  subordinated. 

ART.  62.  With  the  exception  of  the  cases  of  express  and  implied 
submission  referred  to  in  the  foregoing  articles,  the  following  rules 
shall  apply : 

1.  In  personal  actions,  the  competent  judge  shall  be  that  of  the  place 
where  the  obligation  is  to  be  performed,  and  in  his  absence  that  of  the 
domicile  of  the  defendant  or  of  the  place  of  the  contract,  at  the  election 
of  the  plaintiff,  if  said  defendant  be  found  there,  even  accidentally,  and 
process  can  be  served  upon  him. 

When  the  action  is  simultaneously  brought  against  two  or  more 
persons  residing  in  different  towns  who  are  severally  or  jointly  liable, 
no  place  for  the  performance  of  the  obligation  having  been  agreed 

1  Declinatui'*'  is  the  term  applied  to  the  privilege  which  a  party  has,  in  certain 
circumstances,  to  decline  judicially  the  jurisdiction  of  the  judge  before  whom  he  is 
cited.—  Sell's  Die.  and  J>i</e*t  of  tin-  Lou-  of  Scotland,  7th  ed. 

When  the  defendant  has  not  entered  his  appearance  in  the  action  nor  taken  any 
part  therein  whatsoever  it  can  not  be  said  that  he  has  impliedly  submitted  thereto. — 
Dfdxioti.  of  1  tore  HI  ln'r  ,.'</,  1886. 

When  the  defendant,  in  answering  the  complaint,  takes  the  exception  of  incom- 
petency there  is  no  implied  submission. — Decision  of  April  17,  1886. 

It  is  not  sufficient  to  allege  incompetency,  but  the  defendant  must  make  an  issue 
of  the  incompetency  in  order  not  to  be  subjected  thereto,  as  any  other  action  sub- 
jects him  to  the  jurisdiction  of  the  court  before  which  the  action  was  brought. — 
Decision  of  May  23,  1878. 

A  defendant  who  does  not  object  to  the  competency  of  a  judge  to  whom  the  plaintiff 
applies  for  a  declaration  of  poverty,  acknowledges  that  he  is  competent  to  take  cog- 
nizance of  the  principal  action,  in  accordance  with  article  187  of  the  former  law  of 
civil  procedure  which  accords  with  article  21  of  the  present  procedure. — Decision  of 
Orloher  14,  1881. 

A  creditor  who,  before  instituting  an  action,  applies  to  the  court  requesting  that  his 
adversary  confess  the  debt,  is  subject  to  the  jurisdiction  of  said  court  and  can  not 
enter  suit  for  payment  in  another  court. — Decision  of  April  14,  1884- 


18  LAW    OF    CIVIL    PKOCEDUKE. 

upon,  the  judge  of  the  domicile  of  any  of  the  defendants  shall  be  of 
competent  jurisdiction,  at  the  election  of  the  plaintiff. 

2.  In  real  actions  involving  personal  property  or  chattels,  the  judge 
of  the  place  where  it  is  located  shall  be  of  competent  jurisdiction,  or  the 
judge  of  the  domicile  of  the  defendant,  at  the  election  of  the  plaintiff. 

3.  In  real  actions  involving  real  estate  the  judge  of  the  place  where 
the  thing  in  litigation  is  situated  shall  be  of  competent  jurisdiction. 

When  a  real  action  involves  several  real  properties,  or  one  only  sit- 
uated in  different  judicial  districts,  jurisdiction  is  vested  in  the  judge 
of  any  of  the  places  within  the  jurisdiction  of  which  the  property  is 
situated,  at  the  election  of  the  plaintiff. 

4.  In  mixed  actions  the  competent  judge  shall  be  the  one  of  the  place 
where  the  things  are  situated,  or  that  of  the  domicile  of  the  defendant, 
at  the  election  of  the  plaintiff.1 

ART.  63.  In  order  to  determine  competency,  in  cases  other  than  those 
mentioned  in  the  foregoing  articles,  the  following  rules  shall  apply: 

1.  In  actions  involving  the  civil  status  of  a  person  the  judge  of  the 
domicile  of  the  defendant  shall  be  competent. 

2.  In  actions  involving  the  rendition  and  settlement  of  accounts  of 
administrators  of  property  of  another,  the  judge  of  competent  juris- 
diction shall  be  the  one  of  the  place  where  the  accounts  are  to  be 
rendered,  and  if  said  place  should  not  be  determined,  that  of  the  domi- 
cile of  the  principal  or  owner  of  the  property,  or  that  of  the  place 
where  the  duties  of  the  administrator  are  performed,  at  the  election 
of  said  owner. 

3.  In  actions  upon  guaranties  or  upon  the  performance  of  obliga- 
tions prior  thereto,  jurisdiction  is  vested  in  the  judge  competent  to 
take  cognizance,  or  who  is  already  taking  cognizance,  of  the  principal 
obligation  involved.2 

4.  In  counterclaims  or  cross  complaints  (reconvenciori)  the  compe- 
tent judge  is  the  one  taking  cognizance  of  the  main  action. 

1  In  the  absence  of  submission  the  judge  of  the  place  where  the  obligation  is  to  be 
performed  shall  be  competent  to  take  cognizance  of  personal  actions,  and  said  place, 
when  not  specified,  shall  be  that  where  what  has  been  stipulated  has  begun  to  be 
fulfilled.— Decision  of  April  16,  1888. 

The  judge  of  the  place  where  the  obligation  is  to  be  performed  must  always  be 
preferred  to  that  of  the  domicile  of  the  defendant. — Decision  of  January  3,  1885. 

If  no  stipulation  has  been  made  to  the  contrary,  the  amount  of  the  contract  obliga- 
tion must  be  paid  in  the  place  where  the  contract  was  executed. — Decision  of  February 
12,  1883,  and  June  11,  1889. 

When  a  person  dies  and  another  pays  the  funeral  expenses  the  debt  must  be  paid  in 
the  place  of  the  demise,  and  the  judge  thereof  is  competent. — Decision  of  May  5, 1885. 

The  judge  competent  to  take  cognizance  of  actions  brought  to  recover  fees  shall 
be  the  one  of  the  place  where  the  services  were  rendered  for  which  the  fees  are 
charged. — Decision  of  February  27,  1885. 

2  When  the  exercise  of  a  real  action  is  in  question,  the  judge  competent  to  take  cog- 
nizance thereof  shall  be  that  of  any  of  the  places  where  the  charged  property  is  situ- 
ated, at  the  election  of  the  plaintiff. — Decision  of  January  24,  1889. 


LAW    OF    CIVIL    FKOCEDURE.  19 

This  rule  is  not  applicable  when  the  import  of  the  counterclaim 
exceeds  the  amount  involved  in  actions  over  which  the  judge  taking 
cognizance  of  the  first  claim  has  jurisdiction,  in  which  case  the  counter- 
claimant  or  cross  complainant  shall  reserve  the  right  to  bring  the 
action  in  the  proper  court. 

5.  In  testamentary  or  intestate  proceedings  the  judge  of  the  last 
place  of  residence  of  the  deceased  shall  be  competent. 

If  the  last  place  of  residence  should  be  a  foreign  country,  then  juris- 
diction is  vested  in  the  judge  of  the  last  place  of  residence  of  the 
deceased  within  Spanish  territory,  or  where  the  greater  portion  of  his 
property  is  located. 

The  foregoing  shall  not  impair  the  power  of  the  judges  of  first 
instance  or  municipal  judges  of  the  place  of  demise,  to  take  the  meas- 
ures necessary  for  the  obsequies  over  the  remains  and  the  burial  of 
the  deceased;  and,  in  a  proper  case,  that  of  the  judge  within  whose 
jurisdiction  property  of  the  deceased  may  be  situated,  to  take  the 
measures  necessary  to  care  for  and  safely  keep  the  same,  as  well  as 
his  books  and  papers,  forwarding  an  account  of  his  action  to  the 
judge  of  competent  jurisdiction  in  the  testamentary  or  intestate  pro- 
ceedings and  abandoning  his  jurisdiction  in  the  matter.1 

6.  The  foregoing  rule  shall  also  apply  to  testamentary  proceedings 
the  object  of  which  is  the  distribution  of  the  property  among  the  poor, 
relatives,  or  other  persons  designated  by  the  testator,  without  indi- 
cating their  names. 

When  the  purpose  of  the  proceedings  is  the  adjudication  of  religious 
bequests  or  other  ancient  institutions,  the  competent  judge  shall  be 
that  of  any  of  the  places  within  whose  jurisdiction*  the  property  may 
be  situate,  at  the  election  of  the  plaintiff. 

7.  In  proceedings  relating  to  inheritances,  their  distribution,  the  dis- 
position of  legacies,  universal  and  singular  fideicommissa,2  or  trusts 

1  The  cognizance  of  testamentary  and  intestate  proceedings  is  vested  in  the  judge 
of  the  last  residence  of  the  deceased. — Decision  of  February  4,  1889. 

When  a  person  dies  in  a  foreign  country  and  there  is  no  information  tending  to 
show  that  he  is  a  resident  thereof,  and  less  that  he  took  up  his  residence  in  the  same 
with  the  intention  of  losing  or  abandoning  his  domicile  in  Spain,  it  must  be  presumed 
that  his  absence  was  temporary  and  that  his  domicile  continued  to  be  the  place 
where  his  family  was  established,  for  the  purposes  of  this  article. — Decision  of  August 
2,  1866. 

When  the  last  residence  of  the  deceased  is  known,  the  judge  of  the  same  is  com- 
petent to  take  cognizance  of  the  testamentary  proceedings,  his  having  a  business 
place  in  another  district  and  that  he  paid  a  consumption  tax  in  the  latter  and  resided 
there  temporarily  being  no  obstacle  thereto. — Decision  of  December  3,  1881. 

2  In  the  Roman  law,  a  universal  fideicommiss  consisted  in  the  appointment  of  an 
heir  with  directions  verbis  precatwis  that  he  should  restore  the  inheritance  to  a  third 
person  mentioned,  the  heir  being  called  fiduciarius,  and  the  third  person  fideicommis- 
*<//•/' MX.     The  singular  fideicommiss  was  simply  a  trust  legacy,  differing  from  the 
common  legacy  in  nothing  but  the  form  and  the  words  employed. — Sell's  Dictionaru 
<i ad  Digest  of  the  Law  of  Scotland. 


20  LAW    OF    CIVIL    PKOCEDUKE. 

claims  of  testamentary  and  hereditary  creditors,  during  the  pendency 
of  the  testamentary  or  in  testate  proceedings,  jurisdiction  is  vested  in  the 
judge  competent  to  take  cognizance  of  the  last-named  proceedings.1 

8.  In  voluntary  bankruptcy  proceedings  of  merchants  and  of  non- 
merchants,  the  judge  of  competent  jurisdiction  shall  be  the  one  of  the 
domicile  of  the  bankrupt. 

9.  In  bankruptcy  proceedings  instituted  by  creditors,  that  of  any  of 
the  places  where  the  judicial  writs  of  execution  are  being  enforced. 
Among  the  aforesaid  courts  shall  be  preferred  that  of  the  domicile  of  the 
debtor  if  he  and  a  majority  of  the  creditors  request  it.    Otherwise  the 
court  which  decreed  the  adjudication  of  insolvency  shall  be  preferred. 

10.  In  proceedings   relating  to   the   challenge   of   arbitrators   and 
friendly  compromisers  when  they  do  not  agree  to  the  challenges,  the 
judge  of  the  place  where  the  party  challenged  resides  shall  be  competent. 

11.  In  appeals  taken  against  arbitrators,  in  the  cases  where  they  lie 
according  to  law,  the  audiencia  of  the  district  within  which  the  town 
is  situated  in  which  the  action  has  been  heard,  shall  be  of  competent 
jurisdiction. 

12.  In  cautionary  attachment  proceedings  the  judge  of  the  judicial 
district  in  which  the  property  to  be  attached  is  situated  shall  be  com- 
petent, and  for  precautionary  purposes  in  cases  of  urgencv  the  munic- 
ipal judge  of  the  town  in  which  they  are  situate.2 

13.  In  actions  of  unlawful  detainer  or  of  redemption,  the  competent 
judge  shall  be  the  one  of  the  place  where  the  thing  in  litigation  is  sit- 
uate, or  the  one  of  the  domicile  of  the  defendant,  at  the  election  of 
the  plaintiff. 

14.  In  summary  proceedings  to  acquire  possession  of  property3  the 

1  When  the  claims  deduced  relate  to  obligations  inherent  to  an  intestate,  involving 
the  expenses  incurred  during  the  last  illness,  burial,  and  funeral,  the  court  taking  cog- 
nizance of  the  intestate  proceedings  shall  also  be  competent  to  pass  on  and  determine 
said  claims. — Decision  of  December  %%,  1886. 

2  With  the  exception  of  the  cases  referred  to  in  article  1409  of  the  Law  of  Civil  Pro- 
cedure, when  the  cautionary  attachment  is  requested  after  the  institution  of  the 
principal  action,  or  as  an  issue  of  the  same,  and  of  cases  of  implied  or  express  submis- 
sion of  the  parties,  to  which  are  applicable  articles  55  and  56,  respectively,  the  com- 
petency to  take  cognizance  of  said  attachments  must  be  determined  by  rule  12  of 
article  63  of  the  said  law.     Consequently,  if  a  cautionary  attachment .  is  requested 
before  the  institution  of  the  principal   action,  and   the  submission   has  not  been 
alleged,  the  judge  of  the  district  in  which  the  property  is  situated  shall  be  compe- 
tent to  take  cognizance  of  the  proceedings,  no  matter  what  judge  may  be  competent 
to  take  cognizance  of  the  action  which  may  subsequently  be  instituted. — Decision  of 
March  15, 1887. 

^Interdicto  de  adquirir.  These  proceedings  lie  when  no  one  possesses  the  prop- 
erty, whose  possession  is  desired,  as  an  owner  or  usufructuary,  because  the  person 
possessing  the  same  can  not  be  deprived  of  his  possession  without  having  his  right 
heard  and  determined  in  court;  and  it  is  furthermore  necessary  that  a  copy  of  the 
will  giving  him  a  right  thereto  be  presented,  or  of  the  designation  of  heirship  by 
virtue  of  which  he  claims  the  same. — Alcubilla,  Diccionario  de  la  Administration 
espanola. 


LAW  'OF    CIVIL    PROCEDURE.  21 

competent  judge  shall  he  the  one  of  the  place  where  the  property  is 
situate,  or  where  the  testamentary  or  intestate  proceedings  are  insti- 
tuted, or  that  of  the  last  domicile  of  the  deceased. 

15.  In    summary  proceedings   to   retain  or  recover  possession  of 
property  ,a  to  prevent  the  construction  of  a  new  work,  or  to  secure 
the  demolition  or  strengthening  of  a  work,  building,  or  tree  about  to 
collapse  or  fall,  and  in  proceedings  to  settle  boundaries,  the  judge  of 
competent  jurisdiction  shall  be  the  one  of  the  place  in  which  the  thing 
which  is  the  object  of   the   summary  proceedings  or  settlement  of 
boundaries  is  situated. 

16,  In  proceedings  for  adoption  or  arrogation  the  judge  of  compe- 
tent jurisdiction  shall  be  the  one  of  the  domicile  of  the  adopter  or 
arrogator.2 

IT.  In  the  selection  and  appointment  of  guardians  of  persons  and 
property,  and  excuses  from  accepting  them,  jurisdiction  is  vested  in 
the  judge  of  the  domicile  of  the  father  or  mother  whose  death  gives 
rise  to  the  appointment,  and,  in  their  default,  that  of  the  minor  or 
incapacitated  person,  or  that  of  any  of  the  places  where  they  may 
have  real  estate.3 

18.  In  the  appointment  and  selection  of  guardians  ad  litem,  juris- 
diction is  vested   in   the  judge  of  the   place  where   the  minors   or 
incapacitated  persons  have  their  domicile  or  that  of  the  place  where 
the  action  is  to  be  instituted. 

19.  In  actions  based  upon  the  conduct  of  the  guardianship  of  per- 
son or  property,  in  the  resignations  therefrom  after  having  begun  to 
perform   the   duties   thereof,  and   in   actions   to   remove  suspicious 
guardians,  the  judge  of  competent  jurisdiction  shall  be  that  of  the 
place  where  the  principal  part  of  the  guardianship  has  been  adminis- 
tered, or  that  of  the  domicile  of  the  minor. 

20.  In  proceedings  for  the  custody  of  persons,  jurisdiction  shall  be 
vested  in  the  judge  taking  cognizance  of  the  main  action  or  cause 
which  gave  rise  to  said  proceedings. 

When  there  is  no  prior  action  pending,  the  competent  judge  shall  be 
the  one  of  the  domicile  of  the  person  sought  to  be  placed  in  custody. 

1  Interdictos  de  retener  y  recobrar  were  different  according  to  the  law  of  1855;  but  the 
present  law  has  abolished  the  difference  of  procedure  between  the  same.     It  lies 
when  the  person  hi  possession  of  the  thing  has  been  disturbed  therein  by  acts  which 
show  the  intention  of  disturbing  him  or  depriving  him  of  possession,  or  when  he  has 
already  been  deprived  thereof. — Alcubilla,  Diccionario  de  la  Administration  espanola. 

2  The  Civil  Code  has  abolished  the  difference  between  adoption  and  arrogation 
observed  in  the  Koman  law  and  which  was  retained  in  the  Spanish  laws,  as  may  be 

,  seen  in  Law  7,  Title  VII,  Partida  Fourth,  and  in  article  1830  of  this  law. 

3  The  Civil  Code,  besides  having  abolished  the  difference  between  guardianship  of 
person  and  guardianship  of  property  (tutela  y  curaduria],  has  made  the   provisions 
of  rules  17  to  19  inapplicable  by  reason  of  having  assigned  the  appointment  and 
selection,  as  well  as  the  removal  and  excuses  of  the  same,  to  the  family  council. 
(Articles  239,  240,  and  249.) 


22  LAW    OF    CIVIL    PROCEDURE. 

When  special  circumstances  so  require,  the  municipal  judge  of  the 
place  where  the  person  sought  to  be  placed  in  custody  is  found,  may 
order  such  custody  temporarily,  and  shall  forward  a  statement  of  his 
action  to  the  competent  judge  of  first  instance,  subjecting  the  person 
in  custody  to  the  orders  of  said  court.1 

21.  In  proceedings  for  maintenance,  when  collaterally  requested  in 
an  action,  or  in  proceedings  for  the  custody  of  a  person,  the  judge  of 
competent  jurisdiction  shall  be  that  of  the  place  of  residence  of  the 
person  of  whom  said  maintenance  is  requested.2 

22.  In  proceedings  for  the  reduction  to  public  instruments  of  wills, 
codicils  or  bequests  made  verbally,  or  documents  executed  without 
the  intervention  of   a  notary  public,  and  in  proceedings  instituted 
for  the  opening  of  sealed  wills  or  codicils,  the  judge  of  competent 
jurisdiction  shall  be  that  of  the  place  where  said  documents  may  have 
been  executed. 

23.  In  authorizations  for  the  sale  of  property  of  minors  or  incapaci- 
tated persons,  the  competent  judge  shall  be  that  of  the  place  where  the 
property  may  be  situated,  or  that  of  the  domicile  of  the  persons  to 
whom  it  belongs.3 

24.  In  proceedings  for  the  administration  of  the  property  of  an 
absentee,  whose  whereabouts  is  unknown,  jurisdiction  is  vested  in  the 
judge  of  the  last  place  of  residence  of  said  absentee  within  Spanish 
territory. 

25.  In  proceedings  to  dispense  with  the  law,  and  in  proceedings  for 
authority  to  appear  in  an  action,  when  required  by  law,  the  judge  of 
competent  jurisdiction  shall  be  the  one  of  the  domicile  of  the  person 
requesting  it. 

26.  In  proceedings  to  perpetuate  testimony  the  judge  of  competent 
jurisdiction  shall  be  that  of  the  place  where  the  facts  occurred,  or  the 
one  where  the  witnesses  who  are  to  testify  may  be,  even  accidentally. 

1  If  the  person  has  been  placed  in  charge  of   his    mother,  the   judge  of  the 
domicile  of  the  latter  shall  be  competent  to  determine  the  custody  and  support  of  the 
minor. — Decision  of  July  2,  1878. 

2  (a)  Not  this  rule,  but  the  first  one  of  article  62  is  applicable,  to  a  suit  for  the 
reduction  or  release  from  the  payment  of  maintenance,  paid  by  virtue  of  a  judg- 
ment.— Decision  of  February  28,  1878. 

(b)  This  rule  does  not  make  any  distinction  between  a  voluntary  and  contentious 
proceeding,  nor  between  temporary  and  definite  support. — Decision  of  October  29 ', 
1879. 

3  This  rule  is  modified  by  article  164  of  the  Civil  Code,  according  to  which  the 
authorization  to  the  father,  or  to  the  mother,  in  a  proper  case,  to  alienate  or  encum- 
ber the  property  of  the  child  for  proper  causes  of  profit  or  necessity,  and  whose  usu- 
fruct or  management  they  enjoy,  must  be  granted  by  the  judge  of  the  domicile.     The 
authorization  to  the  guardian  to  alienate  or  encumber  property  which  constitutes  the 
capital  of  the  minors  or  incapacitated  persons,  etc.,  must  at  the  present  time  be 
granted  by  the  family  council.     ( Civil  Code,  articles  269,  270,  and  271. ) 


LAW    OF    CIVIL    PEOCEDUEE.  23 

When  these  proceedings  relate  to  the  actual  condition  of  real  estate, 
the  judge  of  competent  jurisdiction  shall  be  the  one  of  the  place  where 
it  may  be  situate. 

27.  In  proceedings  for  surveying,  for  partition  of  foros^  and  for 
possession  of  property,  by  an  act  of  voluntary  jurisdiction,  the  com- 
petent judge  shall  be  that  of  the  place  where  the  greater  portion  of 
the  estate  is  situated. 

ART.  64:.  The  domicile  of  married  women  not  legally  separated  from 
their  husbands  is  that  of  their  husbands.2 

That  of  the  children  under  the  parental  authority  is  the  residence  of 
their  parents. 

That  of  minors  or  incapacitated  persons  subject  to  guardianship  is 
the  residence  of  their  guardians.15 

ART.  65.  The  legal  domicile  of  merchants,  in  all  that  relates  to  com- 
mercial acts  and  contracts  and  the  consequences  thereof,  shall  be  the 
town  where  their  principal  place  of  business  is  located. 

Persons  who  have  commercial  establishments  situated  in  different 
judicial  districts  may  be  made  defendants  in  personal  actions  in  the 
place  where  their  principal  establishment  is  located  or  where  the  obli- 
gation was  incurred,  at  the  election  of  the  plaintiff. 

ART.  66.  The  domicile  of  civil  and  commercial  corporations  shall  be 
the  town  designated  as  such  in  the  articles  of  incorporation  or  in  their 
by-laws.4 

Should  this  circumstance  not  be  apparent  the  provisions  applicable 
to  merchants  shall  be  observed. 

Joint-stock  companies  are  excepted  from  the  provisions  contained 
in  the  foregoing  articles  in  all  that  relates  to  litigation  between  the 
members,  with  regard  to  whom  the  general  provisions  of  this  law  shall 
be  observed. 

ART.  67.  The  legal  domicile  of  employees  shall  be  the  town  where 
they  discharge  the  duties  of  their  employment.  When  the  character 
of  their  employment  is  such  as  to  require  them  to  be  traveling  con- 
tinuously from  place  to  place,  their  domicile  shall  be  considered  the 
place  where  they  most  frequently  reside. 

ART.  68.  The  legal  domicile  of  soldiers  in  active  service  shall  be 
that  of  the  town  in  which  the  corps  to  which  they  belong  may  be  at 
the  time  when  service  of  summons  is  made. 

1  Emphyteutic  rents. — Sdim.,  C.  L.,  309. 

2 The  application  of  this  rule  is  not  affected  by  the  fact  that  the  wife  resides  in  a 
town  different  from  that  of  the  residence  of  the  husband,  nor  that  she  is  registered 
in  said  town. — Decision  of  October  30,  1878. 

3  See  notes  to  rules  17  and  19  of  article  63. 

4  The  fact  of  the  establishment  of  a  branch  in  a  place  not  the  domicile  of  the  com- 
pany, according  to  the  articles  of  incorporation,  does  not  affect  said  domicile. — Deci- 
sion of  June  4,  1883. 


24  LAW    OF    CIVIL    PKOCEDURE. 

ART.  69.  In  cases  in  which  the  designation  of  the  domicile  is  neces- 
sary in  order  to  determine  jurisdiction,  if  the  defendant  has  no  domi- 
cile in  the  islands  of  Cuba  or  Porto  Rico,  jurisdiction  is  vested  in  the 
judge  where  said  defendant  resides. 

Those  who  have  no  fixed  domicile  or  residence  may  be  sued  in  the 
place  where  they  may  be,  or  in  their  last  place  of  residence,  at  the 
election  of  the  plaintiff. 

ART.  TO.  The  foregoing  jurisdictional  provisions  shall  be  applicabln 
to  foreigners  who  may  seek  the  aid  of  the  Spanish  courts  in  acts  of  vol- 
untary jurisdiction,  or  who  appear  in  an  action  as  plaintiffs  or  defend- 
ants against  Spaniards  or  against  other  foreigners,  when  the  Spanish 
jurisdiction  is  authorized  according  to  the  laws  of  the  Kingdom  or  by 
treaties  with  other  powers. 

ART.  71.  The  rules  established  in  the  foregoing  articles  shall  be 
understood  without  prejudice  to  the  provisions  of  law  in  special  cases. 

SECTION  III . — Questions  of  competes  cy. 

ART.  72.  Questions  of  competency  may  be  raised  by  inhibition  or 
declinature. 

The  inhibition  shall  be  presented  to  the  judge  or  court  considered 
competent,  requesting  that  a  writ  be  issued  forbidding  the  court  not 
considered  as  having  jurisdiction  to  proceed  in  the  cause  and  ordering 
it  to  transmit  the  record. 

The  declinature  shall  be  submitted  to  the  judge  or  court  considered 
incompetent,  requesting  that  he  or  it  cease  to  act  in  the  matter  and  to 
transmit  the  record  to  the  judge  or  court  considered  competent.1 

ART.  73.  The  inhibition  and  the  declinature  may  be  interposed  by 
the  parties  cited  to  appear  before  the  incompetent  judge,  or  by  those 
who  may  be  the  legitimate  parties  in  the  action  brought.2 

llt  is  not  sufficient  to  allege  incompetency,  but  it  is  necessary  to  formally  raise  the 
question,  and  if  this  is  not  done  the  benefit  of  number  6  of  article  1693  of  the  law  in 
force  can  not  be  taken  advantage  of  in  order  to  base  thereon  an  appeal  for  annul  1- 
inent  of  judgment. — Decision  of  October  26,  1861. 

When  the  differences  between  two  judges  do  not  involve  any  question  of  jurisdic- 
tion, but  only  the  interpretation  of  a  legal  text,  it  is  not  a  question  of  competency, 
and  the  parties  may  make  use  of  their  right  before  whom  they  wish  and  in  the 
proper  manner. — Decision  of  November  14,  1884- 

In  order  that  there  may  be  a  question  of  competency  it  is  necessary  that  two  judges 
allege  that  they  desire  to  take  cognizance  of  the  same  matter,  believing  themselves 
competent  to  do  so;  and  this  is  not  the  case  when  each  of  the  judges  agrees  that  the 
cognizance  of  the  case  brought  before  him  pertains  to  his  colleague  and  they  dispute 
only  the  validity  of  the  attachment  decreed  by  one  of  them  with  full  powers  in  the 
suit  which  he  is  hearing. — Decision  of  July  12,  1887. 

2  In  civil  matters  questions  of  competency  may  be  raised  only  by  persons  who  ap- 
pear as  litigants,  either  having  brought  the  actions  or  being  defendants  therein. — 
Decision  of  August  30,  186$. 


LAW    OF    CIVIL    PROCEDURE.  25 

ART.  74.  In  no  ease  shall  questions  of  competency  in  civil  matters 
he  raised  by  the  court  on  its  own  motion;  but  the  judge  who  consid- 
ers himself  incompetent  in  the  matter  may  abstain  from  taking"  cog- 
nizance thereof,  after  consulting  with  the  department  of  public 
prosecution,  admonishing  the  parties  to  submit  their  questions  to  the 
proper  court. 

This  ruling  of  the  court  may  be  appealed  from  for  review  and  for  a 
stay  of  proceedings. 

ART.  75.  The  litigant  who  has  submitted  himself  expressly  or  hn- 
pliedly  to  the  court  or  judge  before  whom  the  matter  is  brought, 
can  not  interpose  an  inhibition  or  a  declinature. 

ART.  76.  Neither  can  questions  of  competency  be  raised  in  judicial 
matters  which  have  been  closed  by  a  final  ruling  or  judgment.1 

ART.  77.  He  who  interposes  one  of  the  pleas  mentioned  in  article 
7^  can  not  abandon  it  and  seek  the  other  plea,  nor  take  advantage  of 
both  simultaneously  or  successively,  but  must  submit  to  the  determi- 
nation of  the  plea  he  may  have  preferred. 

ART.  78.  He  who  raises  a  qu'estion  of  competency  by  either  of  the 
pleas  above  mentioned,  shall  state  in  his  plea  that  he  has  not  interposed 
the  other  one. 

If  the  contrary  shall  appear,  he  shall  be  taxed  the  costs  of  the  issue, 
even  though  the  question  of  competency  be  decided  in  his  favor.2 

ART.  7l>.  The  practice  prescribed  for  dilatory  exceptions  shall  be 
followed  in  declinatures  as  prescribed  in  article  536. 

The  practice  prescribed  in  the  following  articles  shall  be  applicable 
to  inhibitions. 

ART.  80.  The  following  may  hear  and  determine  questions  of  com- 
petency raised  by  the  parties: 

1.  Municipal  courts. 

2.  Courts  of  first  instance. 

3.  Audiencias. 

ART.  81.  No  judge  or  court  can  raise  the  question  of  the  compe- 
tency of  his  next  hierarchical  superior,  but  he  may  state,  at  the  instance 
of  the  party  and  after  hearing  the  department  of  public  prosecution, 

1  Although,  according  to  this  article,  questions  of  competency  can  not  he  raised  in 
judicial  matters  which  have  been  closed  by  a  final  ruling  or  judgment,  when  the 
municipal  judge  \vho  rendered  the  same  received  the  writ  of  inhibition  after  doing 
so,  and  the  defendant  had  requested  it  on  the  same  day  on  which  he  was  cited  to 
appear,  this  article  is  not  applicable,  because  the  delay  in  the  matter  on  account  of 
said  writ  can  not  prejudice  him. — Decision  of  January  10,  1883. 

After  a  cautionary  attachment  has  been  ratified  without  the  debtor  having  made 
use  of  his  right,  no  question  of  competency  can  be  raised  with  regard  to  the  attach- 
ment, it  being  a  closed  judicial  matter. — Decision  of  March  3,  1885. 

2  When  a  declinature  has  been  unsuccessfully  interposed  in  an  issue  of  poverty,  an 
inhibition  can  not  afterwards  be  interposed  in  the  main  action,  and  the  person  doing 
so  must  be  taxed  the  costs  in  accordance  with  the  provisions  of   this  article. — 

of  December  31,  1891. 


26  LAW    OF    CIVIL    PROCEDURE. 

his  reasons  for  believing  that  the  cognizance  of  the  matter  pertains 
to  him. 

The  superior  court  or  judge  shall  deliver  the  statement  and  data  to 
the  representative  of  the  department  of  public  prosecution,  for  a  report 
thereon,  and  without  further  proceedings  shall  decide  within  three  days 
what  he  or  it  may  consider  proper,  communicating  the  decision  to  the 
lower  court  for  its  guidance. 

ART.  82.  When  any  judge  or  court  is  taking  cognizance  of  a  matter, 
jurisdiction  over  which  belongs  to  his  or  its  immediate  hierarchical 
superior  or  to  the  supreme  court,  the  latter  shall  confine  themselves 
to  order  the  former,  also  at  the  instance  of  a  party,  and  after  hear- 
ing the  department  of  public  prosecution,  to  abstain  from  proceeding 
in  the  matter  and  to  forward  the  record  to  the  same. 

ART.  83.  In  the  cases  of  the  two  foregoing  articles,  the  judges  and 
courts  shall  always  comply  with  the  order  of  their  next  hierarchical 
superior,  without  further  remedy,  when  the  latter  is  the  supreme  court. 
From  the  decisions  of  the  audiencias,  but  without  prejudice  to  their 
fulfillment,  the  parties  who  may  consider  themselves  injured  and  the 
department  of  public  prosecution,  may  appeal  within  eight  days  to  the 
third  chamber  of  the  supreme  court.  This  chamber  shall  call  for  a 
detailed  report,  or  for  the  record  of  the  proceedings,  from  the  audiencia 
which  may  have  rendered  the  decision,  and  after  hearing  the  depart- 
ment of  public  prosecution  shall  decide  what  it  may  consider  proper. 

A  similar  appeal  may  be  taken  to  the  civil  chamber  of  the  proper 
audiencia  by  the  parties  who  consider  themselves  injured  by  the  reso- 
lutions of  judges  of  first  instance  in  their  relations  with  municipal 
judges. 

ART.  84.  Pleas  for  inhibition  shall  always  be  interposed  in  writing, 
subscribed  by  an  attorney. 

The  only  exceptions  from  this  rule  are  those  relating  to  oral  actions, 
when  the  interest  involved  therein  does  not  exceed  1,000  pesetas,  which 
exceptions  may  be  interposed  and  heard  verbally  before  the  municipal 
judge,  or  in  writing,  without  the  necessit}^  of  the  subscription  of  an 
attorney;  but  the  municipal  fiscal  must  be  heard  in  writing.1 

ART.  85.  The  judge  or  court  before  whom  an  inhibition  is  inter- 
posed shall  hear  the  representative  of  the  department  of  public  prose- 
cution, unless  the  latter  should  have  advanced  said  plea  himself,  as  a 
party  to  the  action.  The  department  of  public  prosecution  shall  con- 
clude the  hearing  within  three  days. 

ART.  86.  After  the  department  of  public  prosecution  has  been  heard, 
the  court  shall  decree  the  issue  of  a  writ  of  inhibition,  or  shall  declare 
that  the  plea  was  not  well  taken. 

1  The  absence  of  the  signature  of  an  attorney  to  an  inhibitory  plea  constitutes  a 
breach  of  form  which  prevents  the  decision  of  the  competency. — Decision  of  July  5, 
1880. 


LAW    OF    CIVIL    PROCEDURE.  27 

ART.  ST.  The  decree  of  a  municipal  judge  or  judge  of  first  instance 
declaring  that  the  inhibitory  plea  was  not  well  taken,  may  be  appealed 
from  for  review  and  for  a  stay  of  proceedings. 

Only  an  appeal  for  annulment  of  judgment  by  reason  of  breach  of 
form  lies,  in  a  proper  case,  from  similar  decisions  of  audiencias, 
whether  rendered  on  appeal  or  in  first  instance. 

ART.  88.  To  the  writ  of  inhibition  there  shall  be  attached  a  certified 
copy  of  the  instrument  in  which  it  was  requested,  of  the  statements 
of  the  representative  of  the  department  of  public  prosecution,  of  the 
decision  rendered  thereon,  and  anything  else  which  the  judge  or  court 
may  deem  necessary  to  sustain  his  or  its  jurisdiction. 

ART.  89.  As  soon  as  the  judge  or  court  inhibited  receives  the  writ 
of  inhibition,  he  or  it  shall  suspend  the  proceedings  and  shall  hear  the 
party  or  parties  who  may  have  appeared  in  the  action,  and  if  said 
parties  should  not  agree  to  the  inhibition,  said  judge  or  court  shall  also 
hear  the  representative  of  the  department  of  public  prosecution. 

ART.  90.  The  hearing  of  the  parties  referred  to  in  the  foregoing 
article  shall  only  be  had  during  three  days,  after  which,  if  the  record 
be  not  returned,  it  shall  be  officially  recovered  by  or  without  a  writ, 
and  after  the  representative  of  the  department  of  public  prosecution 
has  been  heard,  in  a  proper  case,  the  judge  or  court  shall  decide 
whether  or  not  he  shall  be  inhibited  from  proceeding  in  the  matter.1 

ART.  91.  The  appeals  mentioned  in  article  87  lie  against  the  rulings 
of  courts  or  judges  inhibiting  themselves  from  taking  cognizance  of  a 
question. 

ART.  92.  After  the  ruling  by  which  a  court  or  judge  shall  have 
inhibited  himself  or  itself  from  taking  cognizance  of  a  matter  has  been 
agreed  to  or  made  final,  the  proceedings  shall  be  forwarded  to  the 
judge  or  court  which  interposed  the  inhibition,  with  a  citation  of  the 
parties  to  appear  before  him  or  it  within  fifteen  days  and  assert  their 
rights. 

ART.  93.  If  the  inhibition  should  be  refused,  the  decision  shall  be 
communicated  to  the  judge  or  court  which  interposed  it,  with  certified 
copies  of  the  instruments  filed  by  the  parties  in  interest  and  by  the 
representative  of  the  department  of  public  prosecution,  in  a  proper 
case,  and  anything  else  which  may  be  considered  advisable. 

ART  94.  In  the  communication  which  the  judge  or  court  sought  to 
be  inhibited,  addresses  in  the  case  of  the  foregoing  article,  he  shall 
demand  an  answer  in  order  to  continue  the  proceedings,  if  allowed  to 
do  so,  or  to  forward  the  record  of  the  same  to  the  proper  court  for  the 
decision  of  competency. 

ART.  95.  After  the  communication  referred  to  in  the  foregoing 
article  has  been  received,  the  judge  or  court  which  interposed  the 

1  The  decision  must  declare  whether  the  inhibition  is  proper  or  not,  and  the  judge 
inhibited  can  not  declare  that  the  competent  court  is  a  third  one  which  ha*  not 

taken  purl  in  the  question. — Decision  <>f  7>,vr//>/«r  28,  1877. 


28  LAW    OF    CIVIL    PROCEDURE. 

inhibition  shall,  within  three  days,  make  an  order  without  further  pro- 
ceedings insisting  on  or  abandoning  the  inhibition. 

ART.  96.  The  appeals  mentioned  in  article  87  lie  against  a  decision 
desisting  from  an  inhibition. 

ART.  97.  After  the  decision  by  which  the  judge  or  court  interpos- 
ing the  inhibition  desists  therefrom  has  been  consented  to  or  becomes 
final,  it  shall  be  communicated  in  writing  to  the  one  sought  to  be 
inhibited,  together  with  the  proceedings  taken,  in  order  that  it  may 
be  attached  to  the  record  thereof  and  the  proceedings  continued. 

ART.  98.  If  the  judge  or  court  issuing  the  writ  of  inhibition  should 
insist  on  the  inhibition,  he  or  it  shall  communicate  the  same  to  the 
judge  sought  to  be  inhibited,  and  both  shall  forward  by  first  mail  their 
original  proceedings  to  the  superior  court  which  is  to  determine  the 
competency. 

ART.  99.  Questions  of  competency  shall  be  decided— 

1.  Those  arising  between  municipal  judges  of  their  respective  judi- 
cial districts,  by  the  judges  of  first  instance. 

2.  Those  arising  between  judges   of   first   instance  and  municipal 
judges  who  exercise  their  jurisdiction  within  the  respective  territory, 
with  the  exception  of  those  comprised  in  the  foregoing  number,  by 
the  civil  chambers  of  the  audiencias. 

3.  Those  arising  between  judges  of  first  instance  or  other  judges  or 
special  courts  existing  in  the   respective   territory,  whether  among 
themselves  or  with  another  of  a  different  jurisdiction,  by  the  civil 
chambers  of  the  audiencias. 

4.  Those  arising  between  the  said  judges  or  special  courts,  among 
themselves  or  with  others  of  a  different  jurisdiction,  when  any-  of  the 
contending  parties  holds  an  office  within  the  territory  of  the  audiencia 
of  Puerto  Principe  or  that  of  Porto  Rico,  by  the  civil  chamber  of  the 
audiencia  of  Habana. 

5.  All  other  cases,  by  the  third  chamber  of  the  supreme  court. 
ART.  100.  The   transmission   of   the   records   of  proceedings  shall 

always  be  made  with  a  citation  to  the  parties  to  appear  within  ten 
days,  if  the  records  are  to  be  forwarded  to  the  court  of  first  instance, 
within  fifteen  days,  if  to  be  forwarded  to  the  audencia,  and  within  sixty, 
if  they  are  to  be  transmitted  to  the  supreme  court. 

When  the  transmission  of  the  record  of  the  proceedings  is  to  be 
made  to  the  supreme  court,  a  certified  copy  thereof  shall  be  forwarded. 

ART.  101.  After  the  record  has  been  received  by  the  court,  it  shall 
be  delivered  for  a  period  of  three  days  to  the  promotor  fiscal,  and  in 
view  of  his  report  the  judge  shall  render  his  decision  within  a  similar 
period,  if.  the  parties  should  not  have  appeared. 

If  said  parties  have  appeared,  they  shall  be  cited  to  be  present  within 
a  period  not  to  exceed  six  days,  and  shall  in  the  meantime  have  access 
to  the  records  in  the  clerk's  office. 

Should  they  appear  on  the  day  fixed,  the}'  or  their  attorneys  shall 


LAW    OF    CIVIL    PROCEDURE.  29 

be  heard,  and  within  three  days  thereafter  a  decision  shall  be  rendered 
deciding  the  question  of  competency. 

Against  this  decision  there  shall  be  no  remedy  whatsoever,  except  an 
appeal  for  annullment  of  judgment  for  breach  of  form  in  actions  of 
unlawful  detainer. 

ART.  102.  As  soon  as  the  audiencia  or  the  supreme  court  receives 
the  record  of  proceedings,  it  shall  be  delivered  to  the  relator1  in 
order  that  he  may  prepare  an  abstract  thereof  as  soon  as  possible. 

ART.  103.  After  the  abstract  has  been  prepared,  it  shall  be  delivered, 
together  with  the  record,  to  the  public  prosecutor,  in  order  that  he 
may  make  his  written  report  thereon  within  the  period  of  four  days. 

ART.  10-i.  If  the  parties,  or  any  of  them,  have  appeared,  the  record 
shall  be  delivered  to  each  of  them  for  their  examination  for  three 
days,  which  period  can  not  be  extended,  after  which  they  shall  be 
officially  recovered  and  the  day  for  the  hearing  shall  be  fixed. 

This  hearing  must  take  place,  with  or  without  attorneys,  within 
eight  days  after  the  return  of  the  records. 

ART.  105.  From  the  rulings  of  audiencias  deciding  questions  of 
competency  the  only  remedy  shall  be  an  appeal  for  annullment  of 
judgment  by  reason  of  breach  of  form,  which  shall  be  allowed  after 
the  action  has  been  definitely  settled. 

Against  the  rulings  of  the  supreme  court  there  shall  be  no  further 
remedy. 

ART.  107.  The  decisions  of  the  supreme  court  on  questions  of  com- 
petency shall  be  published  within  the  •  ten  days  following  the  date  of 
their  rendition  in  the  Gaceta  de  Madrid  and  in  due  time  in  the  Coleccion 
Legidatwa. 

ART.  108.  The  supreme  court  may  tax  the  costs  of  the  inhibition 
against  the  judge  or  court  and  against  the  party  willfully  raising  or 
opposing  it,  determining,  in  a  proper  case,  the  proportion  in  which  they 
shalFpay  the  same,  or  whether  they  are  to  be  paid  by  the  parties  exclu- 
sively. 

When  the  person  who  has  raised  the  question  of  competency  is 
included  within  the  provisions  of  the  second  paragraph  of  article  78, 
all  the  costs  shall  be  taxed  against  him. 

The  audiencias  and  judges  of  first  instance  may  make  the  same  decla- 
rations when  they  decide  questions  of  competency. 

Should  they  not  make  any  special  taxation  of  costs,  those  arising  in 
the  question  of  competency  shall  be  considered  as  defrayed  by  the 
Government  (de  qficio).z 

1  The  person  appointed  in  each  superior  court  to  make  the  briefs  of  the  causes. — 
Kxr/riche,  Diccionario  de  Legislation  y  Jurisprudencia. 

2  In  accordance  with  the  provisions  of  this  law,  the  taxation  of  costs  against  the 
litigant  and  the  municipal  judge  is  proper  when  they  willfully  and  improperly  raise 
and  sustain  an  inhibition,  giving  the  law  an  interpretation  against  its  spirit  and  that  of 
the  constant  jurisprudence  of  the  supreme  court,  to  which  they  should  have  con- 
formed.— Decision  of  July  3,  1884. 


30  LAW    OF    CIVIL    PROCEDURE. 

ART.  109.  The  court  which  may  have  decided  the  question  of  com- 
petency shall  forward  the  cause  and  the  proceedings  had  before  it,  for 
decision  to  the  judge  or  court  which  has  been  declared  competent, 
with  a  certificate  of  the  judgment  rendered,  and  shall  inform  the  one 
considered  incompetent  thereof. 

Said  court  shall  also  see  that  its  decisions  relating  to  costs  be  enforced, 
and  shall,  after  the  taxation  thereof,  issue  the  proper  orders  for  the 
purpose. 

ART.  110.  When  the  question  of  competency  between  two  or  more 
judges  or  courts  should  be  negative,  by  reason  of  the  refusal  of  all  of 
them  to  take  cognizance  of  a  cause,  the  common  superior  court  or  the 
supreme  court,  in  a  proper  case,  shall  decide  the  question  of  compe- 
tency, the  same  procedure  that  is  prescribed  for  other  questions  of 
competency  being  pursued. 

ART.  111.  The  questions  of  competency  or  of  powers  arising  be- 
tween two  chambers  of  a  court,  shall  be  decided  by  the  chamber  of 
administration  of  the  same,  the  public  prosecutor  being  heard  in 
writing,  without  any  other  proceeding  and  without  further  remedy, 
unless  it  be  an  appeal  for  annulment  of  judgment,  when  proper,  from 
the  definite  judgment  of  the  cause. 

ART.  112.  Questions  of  jurisdiction  interposed  by  secular  judges  or 
courts,  against  ecclesiastical  judges  or  courts,  shall  be  heard  and 
decided  in  accordance  with  the  rules  established  for  appeals  for  review 
to  civil  courts  from  decisions  of  ecclesiastical  courts.1 

ART.  113.  When  ecclesiastical  judges  or  courts  consider  that  juris- 
diction over  a  matter  pending  before  secular  courts  or  judges  belongs 
to  them,  they  may  issue  a  writ  of  inhibition,  and  should  said  courts 
not  inhibit  themselves  they  may  complain  to  the  immediate  superior 
of  the  said  civil  courts  or  judges,  who,  after  hearing  the  representative 
of  the  department  of  public  prosecution  thereupon,  shall  decide  what  he 
may  consider  proper.. 

Against  this  decision  there  shall  be  no  remedy  whatsoever. 

ART.  114.  The  inhibitions  and  declinatures  shall  stay  all  proceed- 
ings until  the  question  of  competency  is  decided,  except  in  the  case 
referred  to  in  the  foregoing  article. 

During  the  stay  of  proceedings,  the  judge  or  court  inhibited  may,  at 
the  instance  of  a  legitimate  party,  take  any  steps  which  may  be  abso- 
lutely necessary  in  his  or  its  judgment  which,  if  delayed,  would  cause 
irreparable  injury. 

ART.  115.  All  proceedings  had  before  the  decision  of  the  questions 

lRecurso  defuerza  en  conocer:  The  complaint  made  by  a  person  who  considers  him- 
self unjustly  treated  by  an  ecclesiastical  judge  to  a  secular  judge,  imploring  his  pro- 
tection, and  requesting  that  the  former  be  ordered  to  repair  the  injustice  done  the 
appellant. — Nwisima  Recopilacion,  book  2,  title  2,  law  1. 


LAW    OF    CIVIL   PEOCEDUEE.  31 

of  competency,  shall  be  valid  without  requiring-  ratification  by  the  judge 
or  court  which  is  declared  competent.1 

SECTION  IV. — Remedy  of  complaint  against  administrative  authorities. 

ART.  116.  The  governors-general  of  the  islands  of  Cuba  and  Porto 
Rico  are  the  only  authorities  which  may  raise  questions  of  positive  or 
negative  competencies  in  the  name  of  the  administration  against 
superior  or  inferior  courts  exceeding-  their  jurisdiction,  in  cases  where 
they  invade  the  powers  pertaining-  to  administrative  officials.2 

ART.  117.  Positive  or  negative  questions  of  competency  which  the 
administration  may  raise  against  judges  or  courts,  shall  be  heard  and 
determined  in  the  manner  prescribed  by  the  laws  and  regulations 
relating  thereto. 

ART.  118.  Judges  or  courts  can  not  raise  questions  of  competency 
against  the  officials  of  the  administrative  service. 

Nevertheless,  they  may  maintain  the  jurisdiction  and  powers  vested 
in  them  by  the  constitution  and  laws,  and  they  may  complain  against 
the  invasions  of  said  authorities,  by  means  of  appeals  to  the  Government. 

ART.  119.  Remedies  of  complaint  may  be  sought — 

1.  At  the  instance  of  the  party  injured. 

2.  At  the  instance  of  the  department  of  public  prosecution. 

3.  Officially  (de  oficio). 

ART.  120.  The  chambers  of  administration  of  the  audiencias  and 
that  of  the  supreme  court  only  may  seek  the  remedy  of  complaint 
against  the  invasions  of  the  administration  in  judicial  powers. 

ART.  121.  Municipal  courts  and  those  of  first  instance,  when  their 
powers  are  invaded  by  the  administrative  authorities,  shall  inform  the 
chamber  of  administration  of  the  audiencia  thereof,  in  order  that  the 
latter  may  seek  the  remedy  of  complaint,  if  it  considers  it  proper. 

For  this  purpose  the  municipal  courts  shall  forward  to  those  of  first 
instance  of  their  judicial  district  the  record  of  the  proceedings  contain- 
ing the  facts  relative  to  the  abuse  of  power  committed  by  the  agent 
of  the  administrative  service,  and  the  latter  shall  forward  the  same 
with  their  report  to  the  proper  audiencia. 

^a)  Judges  of  ordinary  as  well  as  of  the  privileged  jurisdiction  must  bear  in  mind 
the  jurisprudence  established  by  the  supreme  court  in  decisions  of  questions  of  com- 
petency and  conform  thereto  and  not  act  in  contravention  of  jurisprudence  already 
established  for  cases  of  the  same  character. — Decision  of  May  24,  1862. 

(b)  Decisions  of  the  supreme  court,  besides  deciding  the  concrete  questions  to  which 
they  refer,  must  serve  as  rules  to  judges  in  similar  cases,  and  the  latter  shall  not  be 
permitted  to  insist  on  their  own  particular  rulings  in  order  to  raise  or  prosecute  ques- 
tions of  competency  against  the  express  and  decisive  declarations  of  said  court. — 
Decision  of  January  30,  1861. 

8 This  precept  was  subsequently  confirmed  by  the  provincial  law,  oi;  1882,  article  27,, 
and  by  the  Royal  decree  of  November  28,  1883. 


32  LAW    OF    CIVIL    PROCEDURE. 

When  the  proceedings  have  been  initiated  in  the  courts  of  first 
instance,  the}T  shall  be  forwarded  directly  to  the  audiencia. 

If  they  should  have  been  instituted  in  the  chambers  of  justice  of  the 
audiencias  or  of  the  supreme  court,  they  shall  be  referred  to  the 
respective  chamber  of  administration  after  their  conclusion. 

AKT.  122.  The  chambers  of  administration  of  the  audiencias,  after 
receiving  the  proceedings  referred  to  in  the  foregoing  article,  or  in 
view  of  the  proceedings  commenced  or  prosecuted  before  them,  and 
that  of  the  supreme  court,  in  a  proper  case,  shall  forward  the  same  to 
the  department  of  public  prosecution  for  a  report  thereon  with  prece- 
dence over  everything  else. 

AKT.  123.  In  view  of  said  report,  and  after  completing  the  proceed- 
ings, if  necessary,  the  chambers  of  administration  of  the  audiencias,  or 
that  of  the  supreme  court,  in  a  proper  case,  shall  decide  whether  the 
remedy  of  complaint  should  or  should  not  be  sought. 

If  they  decide  that  said  remedy  should  be  sought,  they  shall  do  so  in 
a  statement  containing  the  reasons,  unless  they  should  accept  the  report 
of  the  department  of  public  prosecution  without  any  other  addition. 

ART.  124.  The  Government  shall  decide  these  disputes  in  the  manner 
prescribed  in  the  laws  and  regulations.1 

TITLE  III. 

APPLICATIONS    TO  CIVIL  COURTS    FOE  MODIFICATION    OF  ACTIONS  OF    ECCLESI- 
ASTICAL COURTS.2 

ART.  125.  An  application  for  the  modification  of  the  action  of  an 
ecclesiastical  court  may  be  made  when  an  ecclesiastical  judge  or  court 
hears,  or  attempts  to  hear,  a  secular  cause  not  subject  to  ecclesiastical 
jurisdiction,  or  attempts  to  execute  any  judgment,  by  attachment  or 
.sale  of  property,  pronounced  in  any  matter  within  his  or  its  jurisdic- 
tion, without  seeking  the  aid  of  the  ordinary  jurisdiction. 

ART.  126.  The  audiencias  of  Cuba  and  Porto  Rico  shall  pass  on 
applications  for  the  modification  of  the  action  of  the  Nunciature  or  of 
the  higher  ecclesiastical  tribunals  of  the  court;  and  the  audiencias  on 
those  relating  to  the  action  of  other  ecclesiastical  judges  or  courts  of 
their  respective  districts. 

Against  the  decisions  rendered  thereon  by  the  supreme  court,  or  by 
the  audiencias,  there  shall  be  no  further  remedy. 

ART.  127.  The  following  persons  may  apply  for  the  modification  of 
the  action  of  ecclesiastical  courts: 

1.  Those  who  consider  themselves  injured  by  the  usurpation  of 
powers  made  by  an  ecclesiastical  judge  or  court. 

1  See  note  to  article  116. 

The  subsequent  proceedings  are  indicated  in  the  organic  law  of  the  judiciary. 

2  See  note  to  article  112. 


LAW    OF    CIVIL    PROCEDURE.  33 

2.  The  public  prosecutors  of  the  audiencias  at  their  own  instance  or 
upon  the  request  of  that  of  the  supreme  court. 

ART.  128.  The  municipal  public  prosecutors  (fiscales),  deputy  public 
prosecutors  (promotores  fiscales),  and  the  judges  and  courts  of  the 
ordinary  jurisdiction  can  not  directly  make  application  for  the  modi- 
fication of  the  action  of  an  ecclesiastical  tribunal. 

When  the  above-mentioned  officials  should  learn  that  some  ecclesias- 
tical judicial  authority  has  interfered  in  any  matter  foreign  to  its 
jurisdiction,  they  shall  appty  to  the  public  prosecutors  of  the  audiencias 
or  to  the  one  of  the  supreme  court,  according  to  their  respective  powers, 
furnishing  the  data  and  information  they  may  have  in  order  that  they 
may  make  the  application,  should  they  consider  it  proper. 

ART.  129.  Persons  who  consider  themselves  injured  by  an  ecclesias- 
tical judge  or  court,  and  who  desire  to  make  an  application  for  the 
modification  of  his  or  its  action,  shall  do  so  in  the  manner  prescribed 
by  this  law. 

ART.  130.  The  department  of  public  prosecution  shall  make  the 
application  directly  and  without  any  preparation  whatsoever. 

ART.  131.  The  person  injured  shall  prepare  the  application  before 
the  ecclesiastical  judge  or  tribunal,  requesting,  in  a  signed  petition, 
that  said  ecclesiastical  court  desist  in  the  hearing  of  the  matter  and 
forward  the  record  or  the  proceedings  already  had  to  the  competent 
judge,  stating  that  if  this  be  not  done,  royal  protection  against  his 
action  will  be  sought. 

ART.  132.  When  the  ecclesiastical  judge  or  court  should  deny  the 
petition  made  in  accordance  with  the  foregoing  article,  the  person 
injured  may  demand  a  certified  copy  of  the  ruling  of  denial,  and  after 
it  has  been  obtained  the  application  shall  be  considered  as  prepared. 

ART.  133.  If  the  ecclesiastical  judge  or  court  should  refuse  to  issue 
said  certificate,  or  not  issue  an  order  desisting  from  hearing  the 
matter,  the  person  injured  may  file  a  complaint  in  the  audiencia  within 
the  territory  of  which  the  former  exercises  his  or  its  jurisdiction,  in 
accordance  with  the  provisions  of  this  law. 

ART.  134.  The  court  before  which  the  complaint  is  made,  if  com- 
petent to  pass  upon  the  application,  shall  order  the  ecclesiastical  judge 
or  court  to  deliver  the  certificate  to  the  appellant  within  three  days 
after  the  receipt  of  the  royal  order  addressed  to  him  for  that  purpose. 

ART.  135.  If  the  ecclesiastical  judge  or  court  should  not  comply  with 
the  order  mentioned  in  the  foregoing  article,  a  second  royal  order  shall 
be  sent  to  the  same,  threatening  said  ecclesiastical  judge  or  court  with 
the  penalty  prescribed  for  this  case  in  the  Penal  Code.1 

ART.  136.  If  the  second  royal  order  should  not  be  obeyed,  the  court 
taking  cognizance  of  the  application  shall  order  the  judge  of  first 

1  See  article  388  of  the  Penal  Code  for  Cuba  and  Porto  Rico. 

:.iw 3 


34  LAW    OF    CIVIL    PKOCEDUEE. 

instance  of  the  judicial  district  in  which  the  ecclesiastical  judge  or 
tribunal  resides,  to  recover  the  record  of  the  proceedings  and  forward 
the  same,  and  immediately  begin  the  institution  of  the  proper  criminal 
action. 

In  such  case  the  application  for  modification  of  the  action  of  the 
ecclesiastical  court  shall  be  considered  as  made  by  the  transmission  of 
said  record. 

AKT.  137.  When  proof  of  the  denial  decreed  by  the  ecclesiastical 
judge  or  tribunal  has  been  presented  before  the  proper  court,  or  when 
the  application  has  been  directly  made  by  the  department  of  public 
prosecution,  a  decision  shall  be  rendered  admitting  or  denying  the 
admission  of  said  application. 

ART.  138.  The  court  shall  order  the  admission  when  there  are  rea- 
sons leading  it  to  believe  that  the  ecclesiastical  judge  or  tribunal  has 
gone  beyond  the  limits  of  his  or  its  jurisdiction  and  powers.  Other- 
wise it  shall  declare  that  the  appeal  was  not  well  taken. 

ART.  139.  In  the  same  order  in  which  the  court  admits  the  applica- 
tion, it  shall  require  by  royal  order  that  the  ecclesiastical  judge  or 
tribunal  transmit  the  records  within  three  days,  unless  they  should 
already  be  before  the  court  as  a  consequence  of  the  fulfillment  of  the 
prescriptions  of  article  136. 

ART.  140.  In  the  royal  order  issued  in  accordance  with  the  provisions 
of  the  foregoing  article,  the  ecclesiastical  judge  or  tribunal  shall  be 
requested  to  cite  the  parties  to  appear  within  ten  days,  if  willing, 
which  period  can  not  be  extended,  before  the  court  hearing  the  appli- 
cation, for  the  purpose  of  asserting  their  rights. 

ART.  141.  If  the  parties  appear  by  virtue  of  the  provisions  of  the 
foregoing  article,  they  shall  be  considered  as  parties  to  the  application. 
Should  they  not  do  so,  the  application  shall  be  heard  without  their 
attendance  in  the  same  manner  and  with  the  same  effect  as  if  they  had 
been  present. 

ART.  142.  The  ecclesiastical  judges  and  courts  may  cite  their 
respective  prosecuting  attorneys  to  appear  as  parties  before  the  ordi- 
nary jurisdiction. 

The  said  ecclesiastical  judges  or  courts  shall  have  the  same  char- 
acter of  parties  when  they  appear  at  the  hearing  of  the  application  to 
sustain  their  acts  and  competency. 

ART.  143.  If  the  ecclesiastical  judge  or  court  should  not  forward 
the  records  of  the  proceedings  demanded  of  him,  the  provisions  of 
article  136  shall  be  observed. 

ART.  144.  If  the  judge  of  first  instance,  in  compliance  with  the  pro- 
visions of  article  136,  should  forward  the  record  to  the  court,  he  shall 
order  notice  thereof  to  be  given  to  the  parties  thereto,  citing  them  to 
appear  for  the  purposes  prescribed  in  article  140. 

ART.  145.   After  the  records  of  the  proceedings  have  been   for- 


LAW    OF    CIVIL    PROCEDURE.  35 

warded  by  the  judge  of  first  instance,  in  accordance  with  the  pro- 
visions contained  in  the  preceding  articles,  the  application  shall  be 
considered  as  admitted  by  the  mere  fact  that  said  record  is  before  the 
court  of  competent  jurisdiction. 

ART.  146.  In  any  case,  after  the  records  have  been  received  by  the 
audiencia,  the  application  shall  be  heard  and  determined  in  the  manner 
prescribed  in  this  law  for  appeals  upon  incidental  issues. 

ART.  147.  The  representative  of  the  department  of  public  prosecu- 
tion shall  also  be  a  party  to  the  applications  not  made  by  the  same, 
and  he  must  in  all  cases  attend  the  hearing  thereof. 

ART.  148.  The  court  shall  render  a  decision  within  eight  days  fol- 
lowing the  hearing,  limiting  itself  to  the  following  declarations: 

1.  That  the  application  is  not  well  taken,  taxing  the  costs  against 
the  person  making  it  and  ordering  that  the  record  be  returned  to  the 
ecclesiastical  judge  or  court  for  the  continuation  of  the  proceedings 
according  to  law.    In  no  case  can  the  costs  be  taxed  against  the  depart- 
ment of  public  prosecution. 

2.  That  the  ecclesiastical  judge  or  court  has  wrongfully  assumed 
jurisdiction  in  the  matter,  and  ordering  the  same  to  vacate  any  impo- 
sitions or  punishments  he  or  it  may  have  imposed.     In  such  case  the 
costs  may  be  taxed  against  the  ecclesiastical  judge  or  court,  if  he  or 
it  should,  with  well-known  temerity,  have  assumed  powers  and  juris- 
diction which  said  ecclesiastical  judge  or  tribunal  did  not  have. 

This  order  shall  be  communicated  in  writing  to  the  ecclesiastical 
judge  or  court. 

ART.  149.  A  report  of  every  decision  declaring  that  an  ecclesiastical 
judge  or  court  has  wrongfully  assumed  jurisdiction  shall  be  made  to 
the  government,  a  copy  of  said  decision  being  also  forwarded. 

ART.  150.  When  it  should  be  declared  that  an  application  is  not 
well  taken,  the  records  of  the  proceedings  shall  be  returned  to  the 
ecclesiastical  judge  or  court,  with  the  proper  certificate,  in  order  that 
he  or  it  may  proceed  in  the  matter  according  to  law. 

ART.  151.  After  the  return  of  the  records  of  the  proceedings,  the 
costs  shall  be  appraised  and  taxed.  The  audiencia  shall  issue  the 
proper  orders  for  their  collection  by  judicial  compulsion. 

ART.  152.  If  it  be  declared  that  the  ecclesiastical  judge  or  court 
has  wrongfully  assumed  jurisdiction,  the  records  of  the  proceedings 
shall  be  forwarded  to  the  judge  of  competent  jurisdiction,  and  the 
parties  who  have  appeared  before  the  court  shall  be  cited  to  appear 
before  the  competent  judge,  the  ecclesiastical  judge  being  given  writ- 
ten notice  thereof. 


36  LAW    OF    CIVIL    PROCEDURE. 

TITLE  IV. 

CONSOLIDATIONS. 

SECTION  I. —  Consolidation  of  actions. 

ART.  153.  The  plaintiff  may  consolidate  in  his  complaint  as  many 
causes  of  action  as  he  may  have  against  the  defendant,  even  though 
they  proceed  from  different  titles,  provided  that  said  actions  are  not 
incompatible  with  each  other. 

ART.  154.  The  simultaneous  exercise  of  two  or  more  causes  of 
action  in  one  and  the  same  action  shall  be  incompatible,  and  they  can 
not,  therefore,  be  consolidated,  in  the  following  cases: 

1.  When  said  causes  of  action  mutually  exclude  or  are  antagonistic 
to  each  other,  to  such  an  extent  that  the  selection  of  one  prevents  the 
exercise  of  the  other  or  renders  it  invalid. 

2.  When  the  judge  who  is  to  take  cognizance  of  the  main  action 
should  be  incompetent,  by  reason  of  the  matter  or  amount  in  litiga- 
tion, to  take  cognizance  of  the  consolidated  actions. 

3.  When,  in  accordance  to  law,  the  causes  of  action  must  be  heard 
and  decided  in  actions  of  a  different  character. 

ART.  155.  Causes  of  action  which  by  reason  of  the  amount  litigated 
are  subjects  of  oral  actions,  may  be  joined  in  actions  of  greater  or  of 
lesser  import.1 

In  such  cases  the  competency  of  the  judge  and  the  kind  of  declara- 
tory2 action  to  be  brought  shall  be  determined  by  the  accumulated 
value  of  all  that  may  be  the  object  of  the  complaint. 

ART.  156.  Causes  of  action  against  several  persons,  or  by  several 
persons  against  one,  arising  from  the  same  source  of  title  or  based 
upon  the  same  cause  of  action,  may  be  joined  and  brought  in  one 
action.3 

1  Mayor  cuantia:  Greater  import.     These  actions  are  such  as  involve  interests  valued 
at  more  than  3,000  pesetas,  questions  relating  to  political  or  honorary  rights,  those 
in  which  the  interest  involved  can  not  be  appraised  or 'determined,  personal  exemp- 
tions and  privileges,  filiations,  paternity,  and  other  questions  involving  the  civil 
status  and  condition  of  persons. 

Menor  cuantia:  Lesser  import.  Actions  involving  interests  of  over  250  and  not 
exceeding  3,000  pesetas. — Aleut/ilia,  Diccionario  de  la  Administration  espanola. 

2  Juitio  declarative :  That  involving  doubtful  and  controverted  rights  which  must  be 
judicially  decided. — Escriche,  Diccionario  razonado  de  legislation  y  jurisprudencia. 

3  Article  156  is  limited  to  permitting  a  consolidation  when  one  person  has  several 
causes  of  action  against  another,  and  when  several  persons  have  a  cause  of  action 
against  one  person,  fixing  the  kind  of  causes  of  action  which  may  be  joined  in  either 
case,  without  determining  the  effects  of  the  consolidation;  and  article  159  provides 
that  all  the  causes  of  action  must  be  heard  in  the  same  suit  and  decided  by  the  same 
judgment.     Therefore,  there  is  no  appeal  for  the  violation  of  article  156  wrheii  taken 


LAW    OF    CIVIL    PKOCEDUEE.  37 

ART.  157.  The  consolidation  of  actions  shall  not  be  permitted  after 
answer  to  the  complaint  has  been  made,  but  the  plaintiff  reserves  the 
right  to  institute  the  proper  independent  actions. 

ART.  158.  If,  before  answer  is  made,  the  complaint  be  extended  in 
order  to  consolidate  new  causes  of  action  in  addition  to  those  already 
included  in  the  complaint,  the  period  of  time  to  answer  shall  be 
counted  from  the  time  of  the  filing  of  the  extension  of  the  complaint. 

ART.  159.  When  the  consolidation  of  causes  of  action  can  take  place 
and  is  made  at  the  proper  time  by  the  plaintiff,  it  shall  produce  the 
effect  of  their  being  heard  in  one  and  the  same  action  and  being  decided 
in  one  and  the  same  judgment. 

SECTION  II. — Consolidation  of  records' of  proceedings. 

ART.  160.  Consolidation  of  records  of  proceedings  may  only  be 
ordered  at  the  instance  of  a  proper  party  to  the  action. 

Proper  parties  for  this  purpose  shall  be  those  who  may  have  appeared 
as  litigants  in  any  of  the  causes,  the  consolidation  of  which  is  desired.1 

ART.  161.  The  consolidation  may  be  ordered  in  the  following  cases: 

1.  When  the  judgment  to  be  rendered  in  one  of  the  actions,  the 
consolidation  of  which  is  requested,  would  raise  the  exception  of  res 
judicata  in  the  other. 

2.  When  an  action  is  pending  before  the  competent  court  on  the 
same  matter  which  is  the  object  of  that  instituted  subsequently. 

3.  When  bankruptcy  or  insolvency  proceedings  are  pending  and  the 
property  of  the  insolvent  or  bankrupt  is  the  subject  of  the  action 
instituted.2 

4.  When  testamentary  or  intestate   proceedings  are  pending  and 
the  property  of  the  estate  is  the  subject  of  the  action  instituted  and 

under  the  wrongful  assumption  that  it  grants  to  one  colitigant  the  right  to  maintain 
an  action  which  another  may  have  abandoned  after  having  brought  it. — Decision  of 
May  18,  1891. 

The  causes  of  action  can  not  be  consolidated  when  their  origin  and  the  persons 
against  whom  they  are  directed  are  different. — Decision  of  April  14,  1886. 

The  consolidation  can  not  take  place  when  the  actions  which  the  plaintiff  exer- 
cises arise  from  different  private  contracts  entered  into  by  him  with  different  fire 
insurance  companies. — Decision  of  April  20,  1887. 

1  Records  of  proceedings  can  not  be  consolidated  when  they  relate  to  acts  which 
are  not  connected  with  each  other. — Decision  of  May  9,  1864. 

The  decree  ordering  the  consolidation  of  appeals  of  which  a  court  of  justice  is  tak- 
ing cognizance  is  not  final. — Decision  of  March  29,  1889. 

The  decision  declaring  the  consolidation  of  two  appeals  not  proper,  is  not  final 
for  the  purposes  of  appeals  forannullment  of  judgment. — Decision  of  Februarys,  1888. 

2 The  law  does  not  make  any  distinction  between  voluntary  and  involuntary 
bankruptcy  for  the  purposes  of  the  consolidation  of  proceedings  pending,  which 
involve  the  property  of  the  bankrupt. — Decision  of  March  12,  1869. 


38  LAW    OF    CIVIL    PBOCEDUEE. 

said  action  is  declared  to  be  subject  to  consolidation  with  said  pro- 
ceedings.1 

5.  When  the  unity  of  the  action  would  be  destroyed  if  the  actions 
should  be  prosecuted  separately. 

ART.  162.  The  unity  of  the  action  is  understood  as  destroyed,  for 
the  purposes  of  the  last  paragraph  of  the  foregoing  article — 

1.  When  there  is  identity  of  persons,  things,  and  causes  of  action 
between  two  actions. 

2.  When  there  is  identity  of  persons  and  things,  even  though  the 
causes  of  action  be  different. 

3.  When  there  is  identity  of  persons  and  causes  of  action,  even 
though  the  things  be  different. 

4.  When  the  actions  "are  based  upon  the  same  cause,  even  though 
they  be  instituted  against  many  persons,  thereby  causing  diversity  of 
persons. 

5.  Then  the  actions  are  based  upon  the  same  cause,  even  though 
persons  and  things  be  different. 

6.  When  there  is  identity  of  causes  of  action  and  of  things,  even 
though  the  persons  should  be  different.2 

ART.  163.  The  consolidation  may  be  requested  at  any  stage  of  the 
action  before  the  citation  for  final  judgment. 

ART.  164.  Ordinary  actions,  executory  actions,3  summary  proceed- 
ings relating  to  possession  (interdictos),  and  in  general  all  actions  and 
proceedings  of  the  same  kind  may  be  consolidated,  provided  that  any 
of  the  causes  mentioned  in  article  161  is  attendant. 

ART.  165.  Neither  records  of  proceedings  had  in  different  instances 
nor  ordinary  proceedings  ready  for  judgment  can  be  consolidated. 

ART.  166.  Executory  actions  can  neither  be  consolidated  with  each 

xThe  law  requires,  in  order  to  permit  the  consolidation,  that  the  action  be  brought 
against  the  property  involved  in  the  testamentary  proceedings  and  that  it  be  of 
those  which  can  be  consolidated;  and  if  according  to  this  rule,  the  action  against 
the  testamentary  property  may  be  consolidated  to  said  proceedings,  such  is  not  the 
case  when  said  action  does  not  affect  property  which  does  not  belong  to  the  estate, 
as  is  the  case  of  property  sold  after  the  period  agreed  upon  has  elapsed. — Decision 
of  January  3,  1872. 

A  personal  action  against  a  debtor  can  not  be  joined  to  the  testamentary  proceed- 
ings of  his  deceased  wife. — Decision  of  January  3,  1872. 

2  The  unity  and  identity  of  a  thing  in  litigation  are  indispensable,  among  other 
requisites,  for  a  consolidation  under  the  same  order  of  procedure;  but  it  is  not  a  doc- 
trine of  jurisprudence  that  the  consolidation  of  actions  is  always  proper  whenever 
there  is  said  unity  and  identity. — Decisions  of  May  3,  1871,  and  January  25,  1875. 

The  consolidation  can  not  take  place  when  the  actions  are  terminated. — Decision 
of  May  12,  1871. 

sJuicio  ejecutivo:  An  action  the  purpose  of  which  is  to  enforce  what  is  already 
determined  or  which  appears  from  a  title  which  has  the  same  force  of  law  as  a 
judicial  decision. — Escriche,  Dictionario  de  Legislation  y  Jurisprudenda. 


LAW    OF    CIVIL    PEOCEDUEE.  39 

other  nor  with  proceedings  for  the  settlement  of  estates1  when  only 
the  property  mortgaged  is  the  object  thereof,  excepting  the  case 
mentioned  in  articles  147  or  141  of  the  mortgage  law  respectively  in 
force  in  Cuba  and  Porto  Rico. 

ART.  167.  A  final  order  of  public  sale  is  not  an  obstacle  to  the  con- 
solidation of  executory  actions.  For  this  purpose  such  actions  shall 
not  be  considered  as  closed  until  the  execution  creditor  has  been  paid, 
or  until  the  insolvency  of  the  execution  debtor  is  declared.2 

ART.  168.  If  the  same  judge  is  taking  cognizance  of  the  actions 
sought  to  be  consolidated  and  the  records  thereof  are  kept  by  the 
same  clerk,  the  judge  shall  order  that  the  clerk  make  a  statement  of 
all  of  said  records. 

If  said  records  are  kept  by  different  clerks,  the  judge  shall  order 
that  said  clerks  include  the  records  in  one  and  the  same  statement. 

ART.  169.  For  the  purpose  of  making  the  statement  referred  to  in 
the  foregoing  article,  the  parties  shall  be  cited  to  appear  at  a  fixed  day 
and  hour,  within  eight  days  following  the  order. 

ART.  170.  After  the  statement  is  made,  and  after  hearing  the  coun- 
sel of  the  parties  thereupon,  if  they  should  have  appeared,  the  judge 
shall,  within  the  two  days  following,  render  the  decision  he  may  con- 
sider proper.  This  decision  may  be  appealed  from  for  review  and  for 
a  stay  of  proceedings. 

ART.  171.  If  the  actions  are  prosecuted  before  different  courts,  the 
consolidation  shall  be  requested  before  the  judge  competent  to  take 
cognizance  of  all  of  them. 

This  competency  shall  be  vested  in  the  judge  or  court  before  whom 
the  oldest  action  is  pending,  with  which  the  latter  actions  shall  be 
consolidated. 

From  this  rule  are  excepted  testamentary,  intestate,  general  assign- 
ment, and  bankruptcy  proceedings,  with  which  all  other  records  of 
proceedings  shall  be  consolidated  when  proper.3 

lJuido  universal  6  general:  The  proceedings  in  which  all  the  actions  and  rights  which 
all  creditors  have  against  the  property  of  another  are  heard  and  determined,  such  as 
bankruptcy,  testamentary,  and  intestate  proceedings. — Escriche,  Diccionario  de 
Legislation  y  Jurisprudence,. 

2  The  provisions  contained  in  this  article  shall  not  be  an  obstacle  to  the  consolida- 
tion of  the  records  of  executory  actions  when  proper  if  a  final  order  of  public  sale 
has  been  made,  and  the  proceedings  shall  not  be  considered  closed  until  the  execu- 
tion creditor  has  been  paid  in  full  or  the  execution  debtor  has  been  declared  insol- 
vent.— Decision  of  May  10,  1887. 

3The  general  provisions  of  this  law  relating  to  the  consolidation  of  records  are 
applicable  to  the  consolidation  of  proceedings  for  the  settlement  of  estates.  If  there 
should  arise  a  question  between  testamentary  and  bankruptcy  proceedings,  the  judge 
of  the  proceeding  which  has  been  pending  longest  shall  take  cognizance  of  both. — 
Decision  of  April  17,  1889. 


40  LAW    OF    CIVIL    PROCEDURE. 

ART.  172.  The  written  request  for  the  consolidation  shall  be  accom- 
panied by  as  many  copies  thereof  as  there  may  be  parties  to  the 
action  in  which  the  request  is  made,  to  whom  said  copies  shall  be 
delivered,  in  order  that  within  three  days  thereafter  they  may  object 
to  said  request,  if  they  consider  it  advisable. 

ART.  173.  After  the  expiration  of  the  period  above  mentioned  the 
judge  shall,  without  further  proceedings,  render  a  decision  allowing 
or  denying  the  consolidation,  whether  written  objections  thereto  have 
been  made  or  not. 

There  shall  be  no  remedy  whatsoever  against  the  decision  allowing 
the  consolidation.  An  appeal  for  review  only  shall  lie  against  the 
decision  denying  the  consolidation. 

ART.  174.  When  the  judge  considers  the  consolidation  proper,  he 
shall,  in  the  same  decision,  order  a  communication  addressed  to  the 
one  hearing  the  causes,  requesting  the  records.  To  this  communica- 
tion there  shall  be  attached  a  certified  copy  of  such  data  as  may  be 
considered  by  the  judge  as  sufficient  to  furnish  information  of  the  rea- 
sons on  which  the  request  for  consolidation  is  based. 

ART.  175.  When  the  requisition  and  certificate  have  been  received 
by  the  other  judge,  within  a  period  of  three  days,  which  can  not  be 
extended,  a  hearing  before  him  shall  be  had  of  all  matters  which  have 
arisen  in  the  action. 

ART.  176.  Upon  the  expiration  of  said  period,  the  records  shall  be 
officially  recovered,  if  necessary,  and  the  judge  shall  render  a  decision 
granting  or  denying  the  consolidation. 

The  decision  granting  the  consolidation  may  be  appealed  from  for 
review  only,  but  against  the  decision  denying  the  consolidation  there 
shall  be  no  remedy  whatsoever.1 

ART.  177.  If  the  consolidation  has  been  granted,  the  record  shall 
be  forwarded  to  the  judge  who  may  have  requested  it,  and  the  parties 
shall  be  cited  to  appear  within  fifteen  days  and  assert  their  rights. 

ART.  178.  If  the  consolidation  should  be  denied,  the  judge  upon 
whom  requisition  has  been  made  shall  communicate  said  denial  without 
delay  to  the  judge  requesting  the  consolidation,  attaching  to  his  com- 
munication a  certificate  of  the  data  which  he  may  consider  necessary 
to  justify  his  decision,  with  a  request  for  an  answer,  in  order  to  con- 
tinue proceeding  in  the  action,  if  permitted  to  do  so,  or  to  forward  the 
record  to  the  person  who  is  to  decide  the  question. 

ART.  179.  The  judge  who  may  have  requested  the  consolidation,  as 
soon  as  he  receives  said  communication,  shall  cease  hearing  the  action 
without  any  further  proceedings,  if  he  finds  that  the  reasons  advanced 
in  support  of  the  denial  are  well  founded,  and  shall  answer  the  other 

1 A  decision,  whether  granting  or  denying  the  consolidation,  is  not  final  for  the 
purposes  of  an  appeal  for  annullment  of  judgment. — Decisions  of  September  28,  1866, 
October  15,  1868,  January  12,  1870,  September  29,  1871,  and  September  22,  1872. 


LAW    OF    CIVIL    PROCEDURE.  41 

judge  without  delay  in  order  that  he  may  continue  proceeding  in  the 
action. 

This  decision  may  be  appealed  from  for  review  only. 

ART.  180.  If  the  j  udge  who  is  requested  to  transmit  the  record  should 
refuse  to  do  so,  basing  his  refusal  upon  a  belief  that  the  consolidation 
should  be  made  with  the  actions  pending  before  him,  the  requesting 
judge,  after  receiving  the  communication  and  certificate,  shall,  within 
the  period  of  three  days,  which  can  not  be  extended,  hear  the  party 
who  has  requested  the  consolidation,  after  which,  or  after  recovering 
the  records,  he  shall  render  the  decision  thereupon  which  he  may 
consider  proper. 

ART.  181.  In  the  case  of  the  foregoing  article,  if  the  judge  request- 
ing the  consolidation  should  believe  that  said  consolidation  should  be 
made  with  the  records  pending  in  the  other  court,  he  shall  order  said 
consolidation  made  in  the  manner  prescribed  in  article  177. 

This  decision  may  be  appealed  from  for  review  only. 

ART.  182.  If  the  judge  requesting  the  consolidation  should  find  that 
the  reasons  advanced  by  the  other  for  his  refusal  or  claim  are 
unfounded,  he  shall  forward  the  records  to  the  proper  superior  au- 
thority, with  a  citation  of  the  parties,  and  shall  notify  the  other  judge 
in  order  that  he  may  also  transmit  his  records  to  the  same  authority. 

By  said  superior  authority  is  understood  the  authority  having  juris- 
diction to  decide  questions  of  competency.1 

ART.  183.  The  subsequent  steps  in  this  issue  shall  be  according  to 
the  provisions  prescribed  for  questions  of  competency,  but  the  depart- 
ment of  public  prosecution  shall  not  be  heard  therein. 

ART.  184.  The  hearing  of  the  actions  involved  in  the  consolidation 
shall  be  suspended  during  the  pendency  of  the  request  for  consolidation. 

ART.  185.  If  neither  of  the  judges  should  desist  from  their  purpose, 
the  suspension  shall  not  be  raised  until  the  proper  superior  may  have 
rendered  his  decision. 

However,  the  suspension  shall  be  considered  raised  when  any  decision 
has  been  rendered  which  may  be  appealed  from  for  review  according 
to  articles  173,  176,  179,  and  181,  without  prejudice  to  what  may  be 
proper  after  a  decree  to  carry  out  the  decision  has  been  issued  in  view 
of  the  appeal  taken. 

ART.  186.  By  virtue  of  the  consolidation,  the  proceedings  consoli- 
dated shall  be  continued  in  one  and  the  same  action  and  shall  be  deter- 
mined in  one  judgment. 

ART.  187.  When  two  or  more  actions  are  consolidated,  the  course  of 
the  one  nearer  completion  shall  be  suspended  until  the  others  arrive  at 
the  same  stage. 

1  From  a  ruling  deciding  a  question  of  consolidation  there  lies  only  an  appeal  for 
breach  of  form,  as  in  cases  of  questions  of  competency. — Decision  of  May  27,  1886. 


42  LAW    OF    CIVIL    PROCEDURE. 

This  rule  is  not  applicable  to  consolidations  with  proceedings  relating 
to  the  settlement  of  estates,  in  which  cases  those  consolidated  thereto 
shall  immediately  be  advanced  to  the  same  stage. 

TITLE  V. 

CHALLENGES. 

SECTION  I. — General  provisions. 

AKT.  188.  Justices  and  judges,  whatever  be  their  rank  or  hierarchy, 
and  assessors *  to  municipal  judges  who  substitute  those  of  first  instance, 
and  subordinate  officials  of  superior  and  inferior  courts,  may  be  chal- 
lenged only  for  a  legitimate  cause.2 

ART.  189.  The  following  are  legitimate  causes  of  challenge: 

1.  Relationship  by  affinity  or  consanguinity  within  the  fourth  civil 
degree  with  any  of  the  litigants. 

2.  The  same  relationship  within  the  second  degree  with  the  attor- 
ney of  any  of  the  parties  to  the  action. 

This  shall  be  understood  without  prejudice  to  the  prohibition  which 
is  imposed  upon  attorneys  to  act  as  such  in  actions  in  which  any  of 
their  relatives  within  the  same  degrees  are  to  act  as  judges. 

3.  To  be  or  have  been  denounced  by  any  of  the  parties  as  the  prin- 
cipal, accomplice,  or  accessory  in  a  crime,  or  as  a  principal  in  a  mis- 
demeanor. 

4.  To  have  been  the  counsel  for  any  of  the  parties,  to  have  made  a 
report  on  the  suit  as  an  attorney,  or  to  have  taken  part  therein  as  the 
public  prosecutor,  or  as  an  expert  or  witness. 

5.  To  be  or  have  been  the  guardian,  or  having  been  under  the 
guardianship  of  any  person  who  is  a  party  to  the  action. 

6.  To  be  or  have  been  the  denouncer  or  private  accuser  of  the 
challenging  party. 

7.  To  have  an  action  pending  against  the  challenging  party. 

8.  To  have  a  direct  or  indirect  interest  in  the  action,  or  in  another 
similar  action. 

9.  Intimate  friendship. 

10.  Manifest  enmity. 

1  Assessors  to  municipal  judges:  The  municipal  judges  or  their  substitutes  take  the 
place  of  judges  of  first  instance  and  examination  in  accordance  with  article  69  of  the 
organic  law  of  the  judicial  service  of  September  15,  1870.  If  they  are  not  attorneys 
they  require  an  assessor  who  is  an  attorney,  in  accordance  with  article  71. — Alcubilla, 
Diccionario  de  la  administration  espanola. 

Assessors  to  a  judge  are  persons  possessed  of  knowledge  in  the  law  who  are  appointed 
to  advise  and  direct  the  decisions  of  the  judges  in  certain  inferior  courts. — Sweet's 
Law  Dictionary. 

2 An  appeal  for  anullment  of  judgment  does  not  lie  from  a  decision  on  the  challenge 
of  judges,  because  they  do  not  have  the  character  of  definite  decisions,  nor  do  they 
terminate  an  action,  nor  render  its  continuation  impossible. — Decision  of  January 
19,  1885. 


LAW    OF    CIVIL    PROCEDURE.  43 

ART.  190.  Justices,  judges,  and  assessors  in  whom  any  of  the  cir- 
cumstances mentioned  in  the  foregoing  articles  is  attendant,  shall 
abstain  from  hearing  the  matter  without  waiting  to  be  challenged. 

The  same  rule  shall  apply  to  the  subordinate  officials  of  audiencias 
and  courts  in  similar  cases. 

There  is  no  appeal  whatsoever  from  these  resolutions,  without  preju- 
dice to  the  provisions  of  article  216. 

ART.  191.  Only  legitimate  parties  to  an  action  or  persons  having  a 
right  to  be  such,  and  who  appear  in  the  matter  involving  the  challenge, 
shall  have  a  right  to  interpose  a  challenge.1 

ART.  192.  The  challenge  shall  be  interposed  in  the  first  instrument 
submitted  by  the  challenging  party,  if  the  cause  on  which  it  is  based 
is  prior  to  the  action  and  he  has  knowledge  thereof. 

If  subsequent  thereto,  or  even  though  prior  to  the  same,  the  chal- 
lenging party  should  not  have  had  knowledge  thereof  until  after  the 
institution  of  the  action,  he  must  interpose  said  challenge  as  soon  as 
the  cause  comes  to  his  notice. 

Should  this  not  be  done,  the  challenge  shall  be  disallowed. 

ART.  193.  In  no  case  shall  the  challenge  be  interposed  after  the  par- 
ties have  been  cited  for  judgment  in  first  instance,  nor  after  the  hear- 
ing of  the  case  has  begun  before  the  audiencia. 

Neither  shall  said  challenge  be  interposed  in  the  proceedings  for  the 
execution  of  the  judgment,  unless  it  is  based  on  legitimate  causes 
which  it  is  well  known  have  arisen  after  judgment  was  rendered. 

SECTION  II. — Challenge  of  justices,  judges  of  first  instance,  and 

assessors. 

ART.  194.  The  challenge  of  the  presiding  and  associate  justices  of 
the  supreme  court  and  of  the  audiencias,  as  well  as  of  judges  of  first 
instance  and  municipal  judges  and  their  assessors,  in  a  proper  case, 
when  they  substitute  those  of  first  instance,  shall  be  made  in  writing 
and  subscribed  by  an  attorney,  by  the  solicitor  when  one  takes  part 
in  the  proceedings,  and  by  the  challenging  party  if  able  to  sign  and 
if  he  be  at  the  place  where  the  action  is  pending. 

If  the  challenging  party  should  not  be  present,  the  challenge  shall 
be  subscribed  by  the  attorney  and  solicitor  only,  if  the  latter  should 
be  expressly  authorized  to  challenge. 

In  any  case  the  cause  of  the  challenge  shall  be  clearly  and  explicitly 
stated.2 

1  If  the  instrument  requesting  a  challenge  does  not  contain  the  signature  of  the 
attorney  and  that  of  the  person  challenging,  it  can  not  be  considered  as  made. — Deci- 
sion of  February  7,  1862. 

2  If  the  presiding  judge  of  an  audiencia  attends  the  hearing  of  a  case,  if  there  be 
cause  for  challenge,  he  must  be  challenged  as  soon  as  he  is  seen  to  preside  over  the 
chamber. — Decision  of  November  9,  1863. 

See  amendments,  etc.,  made  for  Cuba  in  orders  Nos.  166  and  242,  series  of  1900, 
in  Appendix. 


44  LAW    OF    CIVIL    PROCEDURE. 

ART.  195.  If  the  litigant  interposing  the  challenge  be  at  the  place 
where  the  action  is  pending,  said  challenge  must  be  sworn  to  by  him, 
without  which  requisite  it  shall  not  be  heard. 

ART.  196.  Said  written  challenge  shall  be  accompanied  by  as  many 
copies  of  the  same  as  there  are  other  litigants,  to  whom  they  shall  be 
delivered  at  the  time  the  first  order  made  is  served  upon  them,  for  the 
purposes  mentioned  in  articles  514  et  seq.1 

ART.  197.  If  the  judge  challenged  should  consider  the  cause  of 
challenge  proper,  being  true  and  included  among  those  mentioned  in 
article  189,  whatever  be  the  form  the  challenging  party  may  have 
adopted,  said  judge  shall  immediately  render  a  decision  allowing  the 
challenge  and  shall  order  that  the  record  be  transferred  to  whomsoever 
is  to  take  his  place. 

If  the  challenge  should  be  interposed  against  a  justice,  if  he  con- 
siders the  cause  alleged  as  true,  and  the  chamber  deems  it  well  taken, 
it  shall  render  a  decision  allowing  the  challenge. 

There  shall  be  no  remedy  whatsoever  against  these  decisions,  with- 
out prejudice  to  the  provisions  of  article  216. l 

ART.  198.  The  decision  admitting  or  denying  the  challenge  shall  be 
communicated  only  to  the  solicitor  of  the  challenging  party,  even 
though  the  latter  be  at  the  place  where  the  action  is  pending  and  has 
signed  the  written  challenge. 

ART.  199.  If  the  challenged  party  should  not  consider  himself 
included  in  the  cause  alleged  for  the  challenge,  he  shall  disallow  it, 
and  a  separate  record  shall  be  ordered  made  at  the  cost  of  the  chal- 
lenging party  for  the  hearing  of  the  issue. 

Said  record  shall  contain  the  original  written  challenge  with  the 
proceedings  had  thereupon,  a  memorandum  thereof  being  inserted  in 
the  main  record.2 

ART.  200.  During  the  hearing  of  the  challenge  the  party  challenged 
can  not  take  part  in  the  main  action  nor  in  the  hearing  of  the  said  chal- 
lenge, and  shall  be  substituted  by  the  proper  judge,  according  to  law. 

ART.  201.  The  interposition  of  the  challenge  shall  not  suspend  the 
course  of  the  action,  the  proceedings  of  which  shall  be  continued  until 
the  action  is  ready  for  citation  for  final  judgment,  at  which  stage  it 
shall  be  suspended  until  the  challenge  is  decided,  if  it  has  not  yet  been 
determined. 

ART.  202.  For  the  purposes  of  the  foregoing  article  and  of  article 
197,  when  the  party  challenged  is  a  judge  of  first  instance,  he  shall 
transfer  the  principal  record  and  the  separate  record  of  the  challenge 
to  the  judge  who  is  to  hear  the  latter,  in  accordance  with  the  last 
paragraph  of  the  following  article. 

1  See  in  Appendix  order  No.  242,  series  of  1900,  for  change  made  for  Cuba. 

2  A  judge  who,  after  disallowing  a  challenge  shall  not  order  a  separate  record 
made  and  shall  continue  hearing  the  case,  rendering  final  judgment,  violates  this  pro- 
vision and  that  of  the  following  article. — Decision  of  December  17,  1886. 


LAW    OF    CIVIL    PROCEDURE.  45 

ART.  203.  The  following  shall  hear  and  determine  challenges: 

If  the  party  challenged  should  be  the  presiding  judge,  or  the  presiding 
judge  of  a  chamber  of  an  audiencia  or  of  the  supreme  court,  the  senior 
presiding  judge  of  the  chamber;  and  if  the  one  challenged  should  be 
the  senior,  then  the  one  next  below  him  in  length  of  service. 

If  the  party  challenged  should  be  an  associate  justice  of  an  audiencia 
or  of  the  supreme  court,  the  senior  associate  justice  of  his  chamber; 
and  if  the  one  challenged  should  be  the  senior  justice,  the  one  next 
below  him  in  length  of  service. 

If  the  party  challenged  should  be  a  judge  of  first  instance  or  a  per- 
son acting  as  such,  the  substitute  judge  of  the  court,  with  the  concur- 
rence of  the  assessor,  should  the  former  not  be  an  attorney,  unless 
there  should  be  another  judge  of  first  instance  in  the  same  town,  in 
which  case  the  latter  shall  hear  and  determine  the  challenge;  should 
there  be  three  or  more,  the  one  senior  to  the  judge  challenged,  and  if 
the  latter  should  be  the  senior  judge,  then  the  junior  judge. 

ART.  204.  After  the  separate  record  has  been  prepared,  a  copy 
thereof  shall  be  given  to  the  opposite  party  in  the  action,  in  order 
that  within  three  days  he  may  allege  what  he  may  deem  proper  with 
regard  to  the  challenge. 

If  there  should  be  two  or  more  opposite  litigants,  said  period  of 
time  shall  be  common  for  all  of  them,  and  they  shall  allege  what  they 
may  deem  proper  in  view  of  the  copy  of  the  written  challenge. 

ART.  205.  After  the  foregoing  copy  has  been  served,  or  after  the 
period  has  elapsed  without  the  persons  having  appeared  to  assert  their 
rights,  evidence  on  the  issue  shall  be  received  for  a  period  of  ten  daj7s, 
which  can  not  be  extended,  when  the  challenge  is  based  on  facts  not 
proven  and  not  admitted  by  the  party  challenged. 

In  all  other  cases  the  challenge  shall  be  heard  and  determined  in  the 
manner  prescribed  for  incidental  issues. 

ART.  206.  Issues  of  challenge  shall  be  decided — 

If  the  party  challenged  were  the  presiding  judge,  or  a  presiding 
judge  of  a  chamber  of  the  supreme  court  or  of  an  audiencia,  by  the 
court  in  bane  of  which  the  challenged  party  is  a  member. 

If  he  were  an  associate  justice,  by  the  chamber  to  which  he  belongs. 

If  the  party  challenged  were  a  judge  of  first  instance,  by  the  judge 
hearing  the  challenge  issue,  in  accordance  with  the  last  paragraph  of 
article  203. 

ART.  207.  The  declaration  admitting  or  disallowing  a  challenge  shall 
be  made  in  a  written  decision  within  three  days. 

ART.  208.  There  shall  be  no  remedy  whatsoever  against  the  decisions 
rendered  by  the  supreme  court. 

From  those  rendered  by  an  audiencia,  an  appeal  for  annulment  of 
judgment  only  shall  lie  in  a  proper  case. 

Decisions  rendered  by  judges  of  first  instance,  or  by  their  substi- 
tutes, admitting  a  challenge,  can  not  be  appealed  from. 


46  LAW    OF    CIVIL    PROCEDURE. 

Decisions  disallowing  a  challenge  may  be  appealed  from  for  review 
and  for  a  stay  of  proceedings. 1 

ART.  209.  After  an  appeal  from  a  decision  disallowing  a  challenge 
is  filed  and  allowed,  the  parties  shall  be  cited  to  appear  before  the 
proper  audiencia  within  the  period  of  ten  days,  for  the  purpose  of 
asserting  their  rights;  and  the  original  separate  record  of  the  challenge 
shall  be  forwarded  to  the  said  audiencia. 

ART.  210.  These  appeals  shall  be  heard  and  determined  in  accord- 
ance with  the  procedure  established  for  incidental  issues. 

ART.  211.  If  the  challenge  should  be  disallowed,  the  costs  thereof 
shall  always  be  taxed  against  the  person  interposing  said  challenge. 

ART.  212.  In  addition  to  the  costs  mentioned  in  the  foregoing  arti- 
cle, the  challenging  party  shall  be  fined  not  less  than  125  or  more  than 
250  pesetas,  if  the  person  challenged  should  be  a  judge  of  first  instance 
and  from  250  to  500  pesetas  when  the  challenged  party  should  be  the 
presiding  judge  or  an  associate  justice  of  an  audiencia. 

ART.  213.  If  the  fines  respectively  mentioned  in  the  foregoing  arti- 
cle should  not  be  paid,  imprisonment  shall  be  imposed  upon  the  per- 
son in  default  in  the  manner  and  for  the  time  prescribed  by  the  penal 
code  for  criminal  causes. 

ART.  214.  Upon  the  disallowance  of  the  challenge,  as  soon  as  the 
ruling  has  become  final,  the  case  shall  be  returned  to  the  original 
judge  in  order  that  he  may  proceed  with  the  hearing  thereof  in  accord- 
ance with  law. 

ART.  215.  If  the  challenge  be  allowed,  and  the  part}7  challenged 
should  be  the  presiding  judge  or  an  associate  justice  of  a  court,  he 
shall  not  take  further  part  in  the  hearing  of  the  proceedings. 

If  the  challenged  party  should  be  a  judge  of  first  instance,  he 
shall  also  cease  taking  further  part  in  the  action,  the  hearing  of  which 
shall  be  continued  by  the  judge  to  whom  the  records  may  have  been 
transferred  in  accordance  with  the  provisions  of  article  203. 

If  the  judge  challenged  has  ceased  to  perform  his  duties  in  the  origi- 
nal court,  on  account  of  a  transfer  or  for  any  other  reason  whatsoever, 
the  case  shall  be  returned  to  the  said  court  in  order  that  the  hearing 
thereof  may  be  continued  by  the  new  judge  who  may  have  taken  the 
place  of  the  one  challenged. 

ART.  216.  If  a  judge  of  first  instance  shall  voluntarily,  or  at  the 
instance  of  a  legitimate  party,  abstain  from  proceeding  in  an  action,  in 

1  A  decision  confirming  a  declaration  that  the  challenge  of  a  judge  is  disallowed 
does  not  have  a  final  character,  because  it  neither  closes  the  action,  nor  does  it  make 
its  continuation  impossible. — Decision  of  October  19,  1889. 

Neither  is  a  ruling  deciding  a  challenge  of  a  judge  or  associate  justice  final  for  the 
purposes  of  annulment  of  judgment. — Decision  of  January  19,  1885. 

See  number  7  of  article  1691  of  this  law,  which  authorizes  an  appeal  for  annulment 
of  judgment  by  reason  of  a  violation  of  these  provisions. 


LAW    OF    CIVIL    PROCEDUKE.  47 

accordance  with  the  provisions  contained  in  articles  190  and  197,  he 
shall  render  a  true  report  thereof  to  the  presiding  judge  of  the  audien- 
cia,  who  shall  communicate  the  same  to  the  chamber  of  administration 
thereof. 

If  said  chamber  should  deem  that  the  abstention  is  improper,  it  may 
impose  disciplinary  correction  upon  said  judge,  if  there  be  sufficient 
cause  therefor,  communicating  it  in  such  case  to  the  colonial  depart- 
ment in  order  that  the  same  may  be  entered  in  the  personal  record  of 
the  judge,  for  the  proper  purposes. 

ART.  217.  If  the  audiencia  should  reverse  the  decision  disallowing 
the  challenge,  it  shall  send  a  copy  of  its  ruling  to  the  said  department 
for  the  purposes  of  the  foregoing  article. 

SECTION  III. —  Challenge  of  municipal  judges. 

ART.  218.  In  oral  and  other  actions  of  which  municipal  judges  take 
cognizance  in  first  instance,  the  challenge  shall  be  interposed  at  the 
time  of  the  appearance.1 

ART.  219.  In  view  of  the  challenge,  if  the  cause  alleged  should  be 
of  those  mentioned  in  article  189  and  be  true,  the  municipal  judge  shall 
allow  the  same,  transferring  the  cognizance  of  the  cause  to  the  judge 
who  is  to  take  his  place. 

If  the  challenge  should  be  disallowed,  he  shall  enter  his  ruling  in 
the  record  and  shall  also  transfer  the  cognizance  of  the  cause  to  the 
proper  judge. 

There  shall  not  be  any  remedy  whatsoever  against  these  decisions.1 

ART.  220.  For  the  purposes  of  the  foregoing  articles,  municipal 
judges  who  may  have  been  challenged  shall  be  substituted — 

By  their  respective  substitutes,  in  towns  where  there  is  no  other 
municipal  judge. 

Where  there  are  two  municipal  judges,  by  the  one  not  challenged. 

If  there  should  be  three  or  more  municipal  judges,  by  the  one  next 
above  him  in  length  of  service;  should  this  seniority  not  be  judicially 
determined,  by  the  one  next  senior  in  age;  and  if  the  one  to  be  substi- 
tuted should  be  the  oldest  in  length  of  service,  by  the  junior  one  in 
point  of  appointment. 

ART.  221.  The  secretary  of  the  municipal  judge  challenged  shall  com- 
municate the  same  to  the  judge  who,  in  accordance  with  the  provisions 
of  the  foregoing  article,  is  to  take  cognizance  of  the  question,  so  that 
he  may  order  what  he  deems  proper. 

In  the  case  of  the  second  paragraph  of  article  219,  the  judge  who  is 
to  pass  upon  the  challenge  shall  require  the  parties  to  appear  at  a  day 
and  hour  fixed  within  the  next  six  days.  He  shall  hear  the  parties  at 
the  time  of  said  appearance,  and  shall  at  the  same  time  receive  the  evi- 

1See  in  Appendix  order  No.  242,  Havana,  June  18,  1900,  amending  this  article. 


48  LAW    OF    CIVIL    PROCEDURE. 

dence  they  may  submit  with  regard  to  the  cause  for  the  challenge, 
when  the  question  is  a  question  of  fact. 

ART.  222.  Upon  the  admission  of  the  evidence,  or  when  the  same  is 
not  necessary  because  the  question  is  one  of  law,  the  municipal  judge 
substituting  the  one  challenged  shall  decide,  allowing  or  disallowing 
the  challenge,  at  the  same  proceeding,  if  possible,  in  which  case  his 
decision  shall  be  entered  in  the  record  to  be  made  thereof. 

Otherwise  he  must  render  his  decision  within  two  days,  which  shall 
be  written  immediately  after  the  record. 

ART.  223.  There  shall  be  no  remedy  whatsoever  against  a  decision 
allowing  a  challenge.1 

From  the  decision  disallowing  a  challenge  an  appeal  lies  to  the  judge 
of  first  instance  of  the  judicial  district  in  which  the  court  of  the  munici- 
pal judge  challenged  is  situated. 

ART.  224.  Said  appeal  shall  be  interposed  verbally  at  the  time  of  the 
appearance,  when  the  substitute  judge  renders  a  decision  therein  dis- 
allowing the  challenge. 

If  he  should  make  use  of  his  privilege  to  defer  the  decision  until 
the  second  day,  the  appeal  shall  be  interposed  at  the  time  of  said  decis- 
ion or  within  the  following  twenty-four  hours.  In  such  cases  the 
appeal  shall  also  be  interposed  verbally  before  the  secretary  of  the 
court,  an  entry  thereof  being  made. 

ART.  225.  If  no  appeal  should  be  taken  within  the  period  fixed  in 
the  foregoing  article,  the  decision  shall  become  final. 

If  an  appeal  should  be  taken  in  time,  the  record  shall  be  transmitted 
without  delay  to  the  court  of  first  instance,  at  the  cost  of  the  appel- 
lant, and  the  parties  shall  be  cited  to  appear. 

ART.  226.  As  soon  as  the  record  has  been  received  by  the  court  of 
first  instance,  the  day  for  the  hearing  shall  be  immediately  set,  and 
shall  be  within  the  eight  days  following,  the  parties  being  notified 
thereof  if  they  shall  have  appeared,  or  when  they  do  appear. 

The  judge  shall  hear  the  parties  or  any  of  them  appearing  at  the 
hearing,  and  on  the  same  da}7,  and  if  that  be  not  possible,  then  within 
the  two  days  following,  he  shall  render  his  decision  thereon  in  writing. 

There  shall  be  no  remedy  whatsoever  against  this  decision. 

ART.  227.  If  the  decision  be  in  the  affirmative,  the  costs  shall  be 
taxed  against  the  appellant. 

ART.  228.  .If  the  challenge  be  disallowed,  the  costs  shall  be  taxed 
against  the  challeging  party,  and  a  fine  of  from  65  to  125  pesetas,  shall 
in  addition  be  imposed  upon  him  with  regard  to  which  the  provisions 
of  article  213  shall  be  applicable.1 

ART.  229.  When  the  challenge  is  allowed  by  a  final  judgment,  and 
upon  the  return  of  the  record  with  a  certificate  of  the  decision  to  the 

1  See  in  Appendix  Cuban  order  No.  242  of  July  18,  1900,  amending  this  article. 


LAW    OF    CIVIL    PROCEDURE.  49 

municipal  court  from  which  the  appeal  was  taken,  the  subsequent 
proceedings  in  the  action  shall  be  had  before  the  municipal  judge  or 
before  the  substitute  who  shall  have  heard  the  challenge,  in  accordance 
with  article  220. 

If  the  challenge  be  disallowed  also  by  final  judgment,  the  judge 
challenged  shall  again  proceed  with  the  action. 

ART.  230.  If  the  challenge  of  the  municipal  judge  or  of  his  substi- 
tute should  occur  at  a  proceeding  to  avoid  litigation  (acto  de  condlia- 
ch'ni)  said  proceedings  shall  be  considered  as  attempted  without  further 
action,  as  prescribed  in  article  463. 

If  the  municipal  judge,  without  being  challenged,  should  voluntarily 
abstain  from  proceeding  in  the  case  on  account  of  the  attendance  of 
any  of  the  causes  mentioned  in  article  189,  his  ordinary  substitute 
shall  continue  the  hearing  of  the  proceeding  to  avoid  litigation. 

ART.  231.  When  a  municipal  judge  is  challenged  in  proceedings 
which  he  is  hearing  by  delegation  of  the  judge  of  first  instance,  the 
challenge  shall  be  interposed  before  the  latter  in  writing,  in  the  man- 
ner prescribed  in  article  194. 1 

The  judge  of  first  instance  shall  forward  the  written  challenge  to  the 
municipal  judge  challenged  in  order  that  he  may  suspend  the  proceed- 
ings and  immediately  report  as  to  whether  or  not  the  cause  of  challenge 
is  true;  and  the  former  shall  hear  and  determine  the  issue  in  accord- 
ance with  the  procedure  established  in  Section  II  of  this  title. 

ART.  232.  In  the  case  of  the  foregoing  article,  if  any  injury  is  liable 
to  be  caused  by  the  suspension  of  the  proceedings,  the  judge  of  first 
instance  shall  take  the  action  necessary  at  the  request  of  a  party;  and 
if  that  be  not  possible,  he  shall  transfer  the  matter  to  another  munici- 
pal judge,  or  to  the  substitute  of  the  one  challenged. 

ART.  233.  If  a  municipal  judge  should  abstain  from  proceeding  in  a 
matter  which  may  have  been  intrusted  to  him  by  a  judge  of  first 
instance,  by  reason  of  the  attendance  of  some  of  the  legal  causes  for 
challenge,  he  shall  so  state  at  the  end  of  the  communication  of  the 
judge  of  first  instance  and  shall  return  it  to  the  latter,  who,  if  he  shall 
consider  that  the  cause  alleged  is  proper,  may  give  the  same  commis- 
sion, without  further  proceedings  to  the  substitute  of  the  former  or  to 
another  municipal  judge. 

SECTION  IV. — Challenge  of  subordinate  officials  of  superior  and  inferior 

courts. 

ART.  234.  The  provisions  of  articles  194  et  seq. ,  of  Section  II  of 
this  title,  shall  be  applicable  to  the  challenge  of  relators,2  secretaries, 

1  See  order  above  mentioned,  in  appendix. 

2  See  note  to  article  102. 

For  a  description  of  the  duties  of  relators  see  Book  II,  title  22,  of  the  Recopiladdu 
de  India*. 

5190 ± 


50  LAW    OF    CIVIL    PROCEDURE. 

clerks  of  chambers,  and  officials  of  the  chambers  of  the  supreme  court; 
to  relators,  secretaries,  and  clerks  of  chambers  of  an  audiencia,  and  to 
the  clerks  and  secretaries  of  the  courts  of  first  instance,  with  the  modi- 
fications established  in  the  following  articles.1 

ART.  235.  After  the  written  challenge  has  been  presented  and  the 
party  presenting  it  has  ratified  it,  in  a  proper  case,  the  official  chal- 
lenged shall  immediately  after  said  challenge  make  a  statement  as  to 
whether  or  not  the  cause  alleged  is  true  and  legitimate,  and  shall 
transmit  the  papers  to  the  proper  person,  who  shall  report  thereon  to 
the  chamber  or  judge  hearing  the  cause. 

ART.  236.  If  the  official  challenged  shall  acknowledge  the  cause  of 
challenge  as  true,  the  judge  or  court  shall  issue  a  written  order,  with- 
out further  proceedings,  allowing  the  challenge,  if  he  deems  that  the 
cause  alleged  is  one  of  those  included  in  article  189. 2 

If  he  should  consider  that  the  cause  alleged  is  not  a  legal  one,  the 
said  judge  or  court  shall  disallow  the  challenge. 

ART.  237.  In  such  cases  there  shall  be  no  remedy  whatsoever  against 
the  decision  allowing  the  challenge. 

Against  a  decision  disallowing  a  challenge,  if  rendered  by  the 
supreme  court  or  by  an  audiencia,  the  only  remedy  is  a  petition  for 
review  before  the  same  chamber,  and  if  the  decision  were  rendered  by 
a  judge  of  first  instance,  an  appeal  may  be  taken  for  review  and  for  a 
stay  of  proceedings. 

Upon  the  admission  of  the  appeal,  the  original  record  relating  to 
the  challenge  shall  be  forwarded  to  the  audiencia,  with  a  citation  to 
the  parties  to  appear  within  10  days,  the  records  of  the  main  action 
remaining  in  the  court. 

ART.  238.  When  the  subordinate  official  challenged  should  deny  the 
truth  of  the  cause  alleged  as  a  basis  for  the  challenge,  separate  pro- 
ceedings shall  be  ordered  instituted  in  accordance  with  the  provisions 
of  article  199. 

The  party  challenged  may  be  a  party  thereto  if  he  requests  it,  and 
such  pertinent  evidence  which  he  may  submit  shall  be  admitted. 

ART.  239.  The  separate  challenge  proceedings  shall  be  heard: 

In  the  supreme  court  and  the  audiencias,  by  the  junior  associate 
justice  of  the  chamber  hearing  the  proceedings  in  which  the  official 
was  challenged,  and  said  associate  justice  may  delegate  to  the  proper 
judge  of  first  instance  the  power  to  carry  on  such  proceedings  in 
regard  thereto  which  said  justice  may  not  be  able  to  attend  to. 

In  courts  of  first  instance,  by  the  judge  hearing  the  main  question. 

ART.  240.  Issues  of  challenge  of  assistants  shall  be  decided  by  the 
same  chambers  or  courts  which  are  taking  cognizance  of  the  question 

1  See  in  Appendix  Cuban  order  No.  242,  July  18,  1900,  amending  this  article. 

2  See  order  above  mentioned  in  appendix. 


LAW    OF    CIVIL    PROCEDURE.  51 

in  which  the  said  assistant  is  acting,  without  further  remedy,  when 
the  decision  shall  have  been  rendered  by  the  supreme  court  or  by  an 
audiencia. 

Neither  shall  there  be  any  remedy  against  the  rulings  of  judges  of 
first  instance  admitting  a  challenge. 

Decisions  disallowing  a  challenge  may  be  appealed  from  for  review 
and  for  a  stay  of  proceedings  (en  ambos  efectos},  the  provisions  of  arti- 
cle 209  being  observed. 

ART.  241.  In  the  case  of  the  challenge  of  a  secretary  of  a  municipal 
court,  the  procedure  prescribed  for  the  challenge  of  municipal  judges 
shall  be  pursued,  the  proceedings  of  challenge  being  heard  and  deter- 
mined by  the  judge  of  the  court  in  which  the  person  challenged  is 
performing  his  duties. 

ART.  242.  The  assistants  challenged,  from  the  moment  they  are 
challenged,  can  not  act  in  the  respective  proceedings  nor  in  the  chal- 
lenge proceedings,  and  shall  be  substituted  by  the  official  of  the  same 
class,  who  may  be  senior  to  them  in  length  of  service,  and  if  the  official 
challenged  should  be  the  senior,  he  shall  be  substituted  by  the  junior 
in  point  of  appointment. 

The  secretaries  of  the  municipal  courts  shall  be  replaced  by  their 
substitutes.  Should  they  have  no  substitutes  they  shall  be  replaced 
by  the  person  whom  the  judge  may  appoint. 

ART.  243.  In  addition  to  the  provisions  contained  in  article  193,  the 
assistants  can  not  be  challenged  during  the  performance  of  any  pro- 
ceeding or  act  intrusted  to  them. 

ART.  244.  The  challenge  of  assistants  shall  not  suspend  the  course 
nor  the  decision  of  the  cause  or  matter  in  which  it  has  been  interposed. 

ART.  245.  When  a  challenge  is  allowed  the  assistant  challenged  shall 
be  taxed  the  cost  of  the  issue,  should  he  have  denied  the  truth  or 
legality  of  the  cause  aileged. 

If  a  challenge  should  be  disallowed,  said  costs  shall  be  taxed  against 
the  challenging  party  in  addition  to  the  fees  and  charges  mentioned  in 
article  247. 

ART.  246.  As  soon  as  a  decision  allowing  a  challenge  becomes  final 
the  assistant  challenged  shall  definitely  cease  taking  part  in  any  manner 
whatsoever  in  the  proceedings,  and  the  person  who  substituted  him 
during  the  hearing  of  the  issue  shall  continue  acting,  and  the  said 
assistant  shall  not  be  permitted  to  charge  any  fees  whatsoever  from 
the  time  the  challenge  was  interposed. 

ART.  247.  If  the  challenge  be  disallowed,  as  soon  as  the  decision 
becomes  final,  the  assistant  challenged  shall  reenter  upon  the  discharge 
of  his  duties,  and  the  challenging  party  shall  pay  him  the  fees  for 
the  work  performed  in  the  proceedings,  without  prejudice  to  paying 
the  same  fees  to  the  person  who  may  have  substituted  the  assistant 
challenged. 


52  LAW    OF    CIVIL    PROCEDUEE. 

TITLE  VI. 

JUDICIAL  PEOCEEDINGS  AND  PERIODS  OF  TIME. 

SECTION  I. — Judicial  proceedings  in  general. 

ART.  248.  All  judicial  proceedings  shall  be  written  upon  the 
stamped  paper  prescribed  by  the  laws  and  regulations,  subject  to  the 
penalties  fixed  therein. 

Rulings  which  must  be  rendered  de  qficio  in  the  cases  prescribed  by 
this  law,  and  the  proceedings  for  their  fulfillment,  shall  be  drafted  on 
official  stamped  paper,  without  prejudice  to  payment  therefor,  when 
and  in  the  manner  proper. 

ART.  249.  Judicial  proceedings  shall  be  authenticated,  under  penalty 
of  annulment,  by  the  public  official  who  is  charged  with  the  duty  of 
attesting  or  certifying  to  the  act. 

ART.  250.  The  secretaries  and  recording  clerks  (escribanos  de  actua- 
ciones}  shall  make  a  note  of  the  day  and  hour  of  the  presentation  of 
instruments  only  in  cases  where  a  time  certain  is  prescribed  therefor. 

Whenever  a  party  requests  it,  a  receipt  shall  be  given  him  on 
common  paper  and  at  his  expense  for  any  instrument  or  document 
delivered  to  said  clerks,  stating  the  day  and  hour  of  its  presentation. 

ART.  251.  Judicial  decisions  shall  be  rendered  before  the  secretary 
or  clerk  charged  with  the  duty  of  authenticating  them. 

The  judges  shall  place  their  full  signature  on  the  first  order  made  in 
each  matter,  as  well  as  upon  rulings  and  judgments,  and  their  surnames 
on  other  orders  of  mere  practice  which  they  may  render,  and  on  the 
declarations  and  acts  in  which  they  may  take  part. 

The  judgments  and  decisions  of  an  audiencia  shall  be  signed  with 
the  full  signature  of  the  justices  who  may  have  rendered  the  same,  and 
the  presiding  judge  of  the  chamber  shall  affix  his  rubric  to  all  orders. 

The  justice  whose  turn  it  is  to  prepare  the  case  for  decision  (magis- 
trado  ponente)  shall  affix  his  surname  to  all  proceedings  had  before  him. 

ART.  252.  The  secretaries  and  recording  clerks  shall  authenticate 
with  their  full  signature,  preceded  by  the  words  "  Before  me,"  judicial 
decisions  and  other  acts  in  which  a  judicial  authority  takes  a  personal 
part  and  the  certificates  or  copies  of  papers  which  they  may  issue. 
Notices  and  other  proceedings  shall  be  authenticated  with  their  surnames. 

ART.  253.  Rulings  and  orders  made  in  proceedings  in  which  relators 
take  part  shall  be  signed  by  them  with  their  full  signatures  and  with  a 
statement  of  their  official  title  before  the  signature  of  the  clerk. 

ART.  254.  The  judges  and,  in  a  proper  case,  justices  charged  with 
the  duty  of  preparing  the  case  for  decision,  shall  personally  receive 
the  declarations  and  shall  preside  over  the  proceedings  for  the  taking 
of  evidence. 


LAW    OF    CIVIL    PROCEDURE.  53 

Said  justices,  nevertheless,  may  intrust  these  duties  to  a  judge  of 
first  instance,  and  the  latter  to  a  municipal  judge,  when  the  proceedings 
are  to  be  had  in  a  town  other  than  at  their  respective  place  of  resi- 
dence. 

None  of  said  judges,  however,  shall  be  permitted  to  intrust  these 
duties  to  secretaries  or  recording  clerks,  except  in  the  cases  authorized 
by  this  law. 

ART.  255.  Proceedings  which  can  not  be  had  within  the  judicial  dis- 
trict where  the  action  is  pending,  must  be  committed  to  the  judge  of 
first  instance  of  the  district  where  said  proceedings  are  to  be  had. 

The  latter  shall  comply  with  the  provisions  contained  in  the  fore- 
going article. 

SECTION  II. — Legal  working  days  and  hours. 

ART.  256.  All  judicial  proceedings  must  take  place  on  legal  working 
days  and  during  legal  working  hours,  under  penalty  of  nullity.1 

ART.  257.  Legal  working  days  are  all  days  of  the  year  excepting 
Sundays,  full  religious  or  civil  holidays,  and  the  days  when  courts  are 
ordered  closed.2 

ART.  258.  Legal  working  hours  are  those  between  sunrise  and 
sunset.3 

ART.  259.  Courts  and  judges  may  legalize  illegal  days  and  hours,  at 
the  instance  of  any  party,  should  there  be  an  urgent  cause  therefor. 

For  this  purpose  urgent  causes  shall  be  considered  such  proceedings 
in  which  delay  may  cause  serious  injury  to  the  persons  interested  or  to 
the  good  administration  of  justice,  or  which  would  nullify  the  effect  of 
a  judicial  order. 

The  judge  shall  determine  the  urgency  of  the  cause  and  shall  decide 
what  he  may  consider  proper,  without  further  remedy. 

1  The  mere  filing  of  an  instrument  can  not  be  classified  as  a  judicial  proceeding  for 
the  purposes  of  a  declaration  of  nullity. — Decisions  of  November  16,  I860,  and  December 
12,  1861. 

2  The  provisions  of  this  section  are  explained  by  the  decisions  of  November  16, 
1860,  and  December  12,  1861,  according  to  which  in  judicial  terms  days  are  to  be 
understood  as  natural  days,  that  is,  of  the  twenty-four  hours  between  midnight 
of  one  day  and   that  of  the  next,  and  consequently  an  appeal  may  be  admitted 
provided  that  it  is  filed  before  12  o'clock  midnight  on  the  last  day  of  the  term. 

According  to  the  organic  law  of  the  judicial  service  courts  are  closed  on  full  holi- 
days, on  the  feast  days  of  the  King,  Queen,  and  Prince  of  Asturias,  on  Thursday  and 
Friday  of  Holy  Week,  and  on  national  holidays. 

3 If  the  greater  portion  of  a  judicial  proceeding^had  taken  place  before  sunset,  and 
should  be  signed  by  artificial  light,  it  would  not  be  invalidated  thereby. — Decision 
of  April  19,  1865. 


54  LAW    OF    CIVIL    PEOCEDUKE. 

SECTION  III. — Notifications,  citations,  summonses,  and  requisitions. 

ART.  260.  Notice  of  all  orders,  rulings,  and  judgments  shall  be 
given  to  the  parties  to  the  action  on  the  day  of  their  rendition,  and 
should  this  not  be  possible,  on  the  day  following. 

The  same  notice  shall  be  given,  when  required,  to  persons  referred 
to  therein  or  who  may  be  prejudiced  thereby. 

ART.  261.  If,  by  reason  of  the  length  of  the  judgment,  it  should 
not  be  possible  to  prepare  copies  thereof  for  service  within  the  period 
above  mentioned,  said  service  may  be  delayed  for  the  time  absolutely 
necessary,  which  period  can  in  no  case  exceed  five  days. 

ART.  262.  Notices  shall  be  served  by  the  clerk,  secretary,  or  official 
of  the  chamber  authorized  therefor,  who  shall  read  in  full  the  order 
to  the  person  upon  whom  service  is  made,  and  shall  at  the  same  time 
deliver  to  him  a  true  copy  thereof,  signed  by  the  recording  clerk, 
even  though  said  copy  should  not  be  demanded,  stating  the  matter  to 
which  it  refers. 

A  statement  of  the  foregoing  must  be  made  in  the  proceeding. 

ART.  263.  The  notices  shall  be  signed  by  the  clerk  and  by  the  person 
on  whom  service  is  made. 

If  the  latter  were  not  able  to  sign,  a  witness  shall  do  so  at  his 
request. 

Should  he  not  wish  to  sign  or  provide  a  witness  to  sign  for  him,  in  a 
proper  case,  two  witnesses  summoned  by  the  clerk  for  the  purpose 
shall  do  so. 

These  witnesses  can  not  refuse  to  sign  under  the  penalty  of  a  fine  of 
from  15  to  65  pesetas. 

ART.  264.  Notices  shall  be  served  at  the  office  of  the  clerk  or  in  the 
place  assigned  in  each  court  for  this  purpose,  if  the  persons  interested 
should  appear  in  the  same. 

Should  they  not  appear  at  the  proper  time,  said  service  shall  be 
made  at  their  residence,  for  which  purpose  said  residence  shall  be  des 
ignated  in  the  first  instrument  which  may  be  filed. 

ART.  265.  If  solicitors  should  not  appear  at  the  proper  time  in 
the  office  of  the  clerk  or  place  assigned  for  the  purpose,  service  shall 
be  made  upon  them  at  their  residence,  but  in  such  case  the  increase  of 
costs  arising  from  the  proceeding  shall  be  paid  by  them  personally 
and  can  not  be  charged  to  their  principals. 

ART.  266.  When  the  residence  is  known  of  the  person  upon  whom 
service  is  to  be  made  and  at.  the  first  attempt  he  should  not  be  found, 
whatever  be  the  cause  or  the  time  of  absence,  service  shall  be  made 
by  writ  (ced/ida)  at  the  same  time  and  without  the  necessity  of  a 
judicial  mandate  therefor. 

ART.  26T.  Writs  for  notifications  shall  contain  the  following: 

1.  A  statement  of  the  character  and  object  of  the  action  or  matter, 
and  the  names  and  surnames  of  the  litigants. 


LAW    OF    CIVIL    PROCEDURE.  55 

2.  A  true  copy  of  the  order  or  resolution  which  is  to  be  notified. 

3.  The  name  of  the  person  upon  whom  notice  is  to  be  served,  with 
a  statement  of  the  reason  for  making  it  in  that  manner. 

4.  A  statement  of  the  hour  at  which  said  person  was  sought  and 
not  found  at  his  residence,  and  the  date  and  signature  of  the  serving 
clerk. 

ART.  268.  Said  writ  shall  be  delivered  to  the  nearest  relative,  mem- 
ber of  his  household,  or  servant,  over  14  years  of  age,  who  may  be 
found  within  the  dwelling  of  the  person  who  is  to  be  served,  and  if  no 
one  be  found  there,  delivery  shall  be  made  to  the  nearest  neighbor  who 
may  be  found. 

The  delivery  shall  be  vouched  for  in  the  records  by  means  of  a 
statement  containing  the  name,  status,  and  occupation  of  the  person 
who  received  the  writ,  his  connection  with  the  party  to  be  served,  and 
the  obligation  of  the  former  of  delivering  said  writ  upon  his  return 
to  the  residence,  or  to  inform  him  thereof,  if  said  person  knows  his 
whereabouts,  under  a  penalty  of  from  15  to  65  pesetas.  The  obliga- 
tion of  the  party  receiving  the  writ  shall  be  made  known  to  him  by 
the  clerk. 

Said  statement  shall  be  signed  by  the  clerk,  and  by  the  person 
receiving  the  writ;  and  if  the  latter  should  not  be  able  to  sign  or  not 
wish  to  do  so,  the  provisions  of  article  263  shall  be  observed. 

ART.  269.  When  the  residence  of  the  person  to  be  served  is  unknown, 
or  if  his  whereabouts  is  unknown  by  reason  of  his  change  of  residence, 
a  statement  shall  be  made  thereof  and  the  judge  shall  order  that  the 
service  be  made  by  posting  the  writ  at  the  usual  public  place  and  by 
publishing  it  in  the  Official  Gazette  and  in  the  official  bulletins  of  the 
provinces  where  there  may  be  such. 

He  ma}7  also  order  the  publication  of  the  writ  in  the  G-aceta  de 
Madrid  when  he  deems  it  necessary. 

ART.  270.  The  foregoing  provisions  relating  to  notices  shall  also  be 
applicable  to  citations,  summonses,  and  requisitions,  with  the  modifica- 
tions contained  in  the  following  articles.1 

ART.  271.  Service  of  citations  and  summonses  upon  those  who  are  or 
who  should  be  parties  to  the  action,  shall  be  made  by  writ  delivered  to 
the  person  to  be  cited  instead  of  the  copy  of  the  order,  a  statement  of 
said  service  being  made  in  the  proceedings. 

lrThe  provisions  contained  in  articles  270,  271,  and  274  of  this  law  are  of  general 
application  with  regard  to  the  manner  of  issuing  summonses,  and  therefore,  all  sum- 
monses issued  by  municipal  courts  to  appear  before  the  supreme  court  or  before  any 
other  superior  court  must  conform  to  these  prescriptions. — Decisions  of  July  23, 
August  27,  September  13  and  22,  1884. 

When  a  certified  copy  of  a  judgment  is  delivered  to  a  party  requesting  it,  for  the 
purpose  of  taking  an  appeal,  the  opposite  party  only  has  to  be  summoned  to  appear 
before  the  supreme  court. — Decision  of  October  30,  1884- 


56  LAW    OF    CIVIL    PROCEDURE. 

ART.  272.  The  writ  of  citation  shall  contain— 

1.  The  name  of  the  judge  or  court  issuing  the  order,  the  date  of  the 
latter,  and  the  matter  upon  which  it  is  based. 

2.  The  name  and  surnames  of  the  person  upon  whom  service  is  to 
be  made. 

3.  The  purpose  of  the  citation  and  the   name  of  the  party  who 
requested  it. 

4-.  The  place  where  and  the  day  and  hour  when  the  person  cited  is 
to  appear. 

5.  The  admonition  that  if  he  fails  to  appear  he  shall  suffer  the 
penalty  imposed  by  law;  closing  with  the  date  and  the  signature  of 
the  clerk. 

If  the  appearance  is  obligatory  this  admonition  shall  be  made,  and 
if  a  second  citation  becomes  necessary  by  reason  of  the  failure  of  the 
party  cited  to  appear,  he  shall  be  warned  in  said  citation  that  if  he 
fails  to  appear,  or  if  he  does  not  show  good  cause  for  nonappearance, 
he  shall  be  prosecuted  for  the  offense  of  serious  disobedience  to  the 
authorities. 

ART.  273.  The  citation  of  the  witnesses  and  experts,  and  other  per- 
sons not  parties  to  the  action,  when  to  be  made  officially,  shall  be 
made  by  a  bailiff  (alguacil). 

For  this  purpose  the  clerk  shall  prepare  duplicate  writs,  and  the  bailiff 
shall  deliver  one  copy  to  the  person  cited,  who  shall  sign  his  receipt 
on  the  other  copy,  which  shall  be  attached  to  the  record. 

These  citations  may  also  be  made  by  means  of  an  official  communi- 
cation when  the  judge  considers  it  advisable. 

ART.  274.  The  writ  of  summons  shall  contain  all  the  statements 
mentioned  in  numbers  1,  2,  3,  and  5  of  article  272,  and  shall  contain 
in  addition  a  statement  of  the  period  within  which  the  person  cited  is 
to  appear,  and  the  superior  or  inferior  court  before  whom  said  appear- 
ance shall  be  made.1 

ART.  275.  Requisitions  shall  be  served  by  the  delivery  of  a  notice 
upon  the  person  interested  of  the  order  in  which  it  is  made,  in  the 
form  prescribed;  the  clerk  shall  make  an  entry  in  the  proceeding  stat- 
ing that  the  requisition  has  been  served  as  ordered. 

ART.  276.  No  answer  of  the  person  interested  shall  be  allowed  nor 
stated  in  notifications,  citations,  and  summonses,  unless  required  in  the 
order  of  the  court. 

In  the  case  of  requisitions  the  answer  made  by  the  person  requested 
shall  be  allowed  and  succinctly  entered  in  the  proceeding. 

ART.  277.  If  the  citation  or  summons  is  to  be  made  by  means  of 
letters  rogatory  or  letters  mandatory,  the  proper  writ  shall  be  attached 
thereto. 

1  Court  clerks  who  do  not  comply  with  the  prescriptions  of  this  article  shall  be 
disciplined,  incurring  a  fine  of  from  25  to  50  pesetas. — Decision  of  May  20,  1886, 


LAW    OF    CIVIL    PROCEDURE.  57 

ART.  278.  The  writs  for  notifications,  citations,  and  summons  shall 
be  written  on  ordinary  paper. 

ART.  279.  All  notifications,  citations,  and  summonses  not  made  in 
accordance  with  the  provisions  contained  in  this  section  shall  be  null. 

Nevertheless,  when  the  person  notified,  summoned,  or  cited  shall 
have  obeyed  the  same  in  the  action,  the  proceeding  shall  from  that 
time  have  the  same  effect  as  if  said  service  had  been  made  in  accord- 
ance with  the  provisions  of  law. 

The  clerk  shall  not  be  relieved  thereby  from  the  disciplinary  correc- 
tion prescribed  in  the  following  article: l 

ART.  280%  The  assistant  or  subaltern  official  who  shall  delay  dis- 
charging the  duties  intrusted  to  him  in  this  section,  or  should  neglect  to 
comply  with  any  of  the  formalities  established  in  the  same,  shall  be 
disciplinarily  corrected  by  the  judge  or  court  in  whose  service  he  may 
be,  with  a  fine  of  from  65  to  125  pesetas. 

He  shall  furthermore  be  liable  for  any  damages  or  costs  which  may 
have  been  caused  by  his  neglect. 

SECTION  IV. — Service  of  'notifications  in  the  court  room. 

ART.  281.  In  all  actions  and  proceedings  in  which  a  litigant  shall 
place  himself  or  be  declared  in  default  for  not  appearing  in  the  action 
after  he  has  been  formally  cited,  no  further  effort  shall  be  made  to 
secure  his  appearance. 

All  orders  thereafter  made  in  the  action,  and  all  citations  and  sum- 
monses which  are  thereafter  to  be  served  upon  him,  shall  be  served 
within  the  limits  of  the  court  room,  except  in  such  cases  as  is  otherwise 
provided  for. 

ART.  282.  The  notifications,  citations,  and  summonses  referred  to  in 
the  foregoing  article  shall  be  served  by  reading  the  orders  which  are 
to  be  served,  or  those  ordering  the  citation  to  be  made,  at  a  public 
session  of  the  judge  or  court  issuing  the  same,  and  in  the  presence  of 
two  witnesses,  who  shall  sign  the  proceeding  which  shall  be  attached 
to  the  record  and  authenticated  by  the  court  clerk. 

ART.  283.  The  judgments  and  rulings  of  which  notice  is  given  within 
the  limits  of  the  court  room  and  the  writs  of  citations  and  summons 
to  be  served  in  the  same,  shall  also  be  published  by  means  of  edicts, 
which  shall  be  posted  at  the  door  of  the  place  where  the  sessions  of  the 
judge  or  court  are  held,  a  statement  thereof  also  being  made  in  the 
proceedings. 

Articles  279,  292,  295,  306,  314,  317,  and  327  of  this  law  refer  to  the  order  of  the 
proceedings,  and  even  though  it  should  be  violated  it  does  not  give  rise  to  an  appeal. — 
Decision  of  February  3,  1883. 

As  soon  as  the  plaintiffs  enter  an  appearance  in  an  action,  any  breach  of  form  in 
their  citation  is  corrected,  without  prejudice  to  the  disciplinary  correction  of  the 
proper  party. — Decision  of  December  17,  1886. 


58  LAW    OF    CIVIL    PKOCEDUEE. 

The  adjudging  part  of  definite  judgments  shall  also  be  published  in 
the  official  newspapers  in  the  cases  and  in  the  manner  prescribed  by 
law.  In  such  a  case  a  copy  of  the  newspaper  in  which  the  publication 
was  made  shall  be  attached  to  the  record. 

SECTION  V. — Letters  requisitorial,  letters  rogatory,  letters  mandatory, 

and  mandates. 

ART.  284,  Judges  and  courts  shall  aid  each  other  in  the  execution 
of  all  proceedings  necessary  and  ordered  in  civil  actions. 

ART.  285.  When  a  judicial  order  is  to  be  executed  other  than  at  the 
place  of  trial  of  the  action,  or  by  a  court  or  judge  other  than  the  one 
making  the  order,  the  latter  shall  commit  the  execution  thereof  to  the 
proper  person  by  means  of  letters  requisitorial,  letters  rogatory,  or 
letters  mandatory. 

Letters  requisitorial  shall  be  used  when  he  applies  to  a  court  or 
judge  higher  in  degree;  letters  rogatory  when  said  execution  is 
directed  to  one  of  equal  degree,  and  letters  mandatory  when  directed 
to  a  subordinate  court  or  judge. 

ART.  286.  The  provisions  of  the  foregoing  article  shall  be  under- 
stood without  prejudice  to  the  right  of  judges  of  first  instance  to  go 
to  any  place  or  town  within  their  judicial  district,  for  the  purpose  of 
executing  their  judicial  orders  (diligencias)  in  person,  if  they  deem 
it  advisable. 

ART.  287.  The  judge  or  court  which  shall  have  ordered  the  execu- 
tion of  a  judicial  proceeding,  can  not  address  for  this  purpose  judges 
or  courts  of  a  category  or  degree  lower,  who  are  not  his  subordinates, 
but  he  must  deal  directly  with  such  of  their  superiors  as  exercise  a 
degree  of  jurisdiction  equal  to  his  own. 

ART.  288.  A  mandate  shall  be  employed  for  the  purpose  of  ordering 
the  issue  of  certificates,  or  transcripts,  or  the  fulfillment  of  any  judicial 
order,  the  execution  of  which  is  imposed  upon  registrars  of  property, 
notaries,  assistants,  or  subordinate  officials  of  inferior  or  superior 
courts. 

ART.  289.  When  judges  or  courts  are  obliged  to  direct  requests  to 
authorities  or  officials  of  another  department,  they  shall  do  so  by  official 
communications  or  statements,  as  the  case  may  require. 

ART.  290.  Letters  rogatory  and  other  letters  shall  be  received  by 
the  superior  or  inferior  court  to  which  the  request  is  addressed,  with- 
out requiring  the  exhibition  of  a  power  of  attorney  of  the  person  pre- 
senting the  same,  nor  shall  he  be  allowed  to  present  any  writing  with 
said  requests,  unless  it  should  be  indispensable  to  do  so  for  the  pur- 
pose of  giving  explanations  or  information  to  facilitate  their  execution. 

The  proper  clerk  shall  draft  a  statement  at  the  end  of  the  letters 


: 


LAW    OF    CIVIL    PEOCEDUEE.  59 

rogatory  or  other  letters,  stating  the  date  of  their  presentation  and 
the  person  presenting  the  same,  to  whom  he  shall  give  a  receipt;  both 
shall  sign  this  memorandum,  and  information  thereof  shall  be  given 
to  the  court  or  judge  on  the  same  day,  and  if  this  were  not  possible, 
n  the  next  legal  working  day. 

ART.  291.  Letters  rogatory  and  the  other  letters  aforementioned, 
shall  be  delivered  to  the  party  at  whose  request  they  were  issued,  in 
order  that  he  may  superintend  their  execution. 

If  the  opposite  party  requires  it,  a  time  shall  be  set  for  their  pres- 
entation to  the  person  to  whom  they  are  to  be  transmitted. 

ART.  292.  The  person  requesting  letters  rogatory  or  other  letters, 
shall  be  obliged  to  furnish  the  stamped  paper  necessary,  and  shall  pay 
the  costs  that  may  be  incurred  in  their  execution. 

ART.  293.  The  provisions  contained  in  the  three  preceding  articles 
are  not  applicable  to  letters  rogatory  and  other  letters  issued  at  the 
court's  own  motion  (de  oficio)  or  at  the  instance  of  a  poor  person.  A 
receipt  shall  be  given  to  the  judge  issuing  said  letters  rogator}^  or 
other  letters,  and  the  action  or  proceedings  requested  shall  also  be 
performed  officially  and  drafted  upon  official  stamped  paper. 

ART.  294.  The  requesting  judge  may  directly  forward  to  the  judge 
upon  whom  the  request  is  made,  letters  rogatory  issued  at  the 
instance  of  a  well-to-do  party,  when  the  latter  should  request  it,  by 
reason  of  not  having  sufficient  acquaintance  at  the  place  where  the 
request  is  to  be  complied  with. 

In  such  cases  said  party  must  furnish  the  stamped  paper  which  may 
be  considered  necessary  for  securing  the  information  required,  which 
shall  be  forwarded  with  the  letters  rogatory;  he  shall  pay  the  postage 
and  registration  charges,  and  also  all  the  expenses  incurred  in  the  com- 
pliance therewith,  as  soon  as  the  bill  therefor  is  received,  as  well  as 
any  other  costs  which  may  be  incurred  in  enforcing  payment  by  com- 
pulsory process,  which  shall  be  resorted  to  for  their  recovery,  if  said 
payments  are  not  made  within  eight  days. 

All  these  facts  shall  be  stated  in  the  communication  accompanying 
the  request,  and  the  judge  of  whom  the  request  is  made,  shall  cause 
the  request  to  be  complied  with  without  delay.1 

ART.  295.  The  judge  or  court  who  shall  receive,  or  to  whom 
are  presented,  letters  requisitorial,  letters  rogatory,  or  letters  manda- 
tory, in  proper  form,  if  his  own  competency  should  not  be  affected 
thereby,  shall  order  what  may  be  proper  for  the  execution  of  the 
request  made  therein,  within  the  period  fixed  in  the  letters  themselves, 
or  otherwise,  as  soon  as  possible. 

1  When  a  judge,  in  complying  with  the  request  of  another,  exceeds  the  instruc- 
tions received,  his  action  does  not  produce  any  legal  effect  whatsoever,  because  he 
took  the  same  without  having  jurisdiction. — Decision  of  June  6,  1886, 


60  LAW    OF    CIVIL    PROCEDURE. 

After  the  commission  has  been  fulfilled,  the  letters  shall  be  returned 
to  the  requesting  party  through  the  same  channels  by  which  they 
were  received. 

ART.  296.  When  the  judge  upon  whom  the  request  is  made  shall  be 
unable  to  fulfill  personally,  either  in  whole  or  in  part,  the  commis- 
sions entrusted  to  him,  he  may  delegate  the  same  to  an  inferior  judge 
subordinate  to  him,  by  transmitting  the  original  letters,  or  a  commu- 
nication containing  all  necessary  statements,  if  he  were  obliged  to 
retain  the  former  for  the  performance  of  other  proceedings  which  it 
should  be  necessary  to  undertake  simultaneously. 

ART.  297.  The  judge  upon  whom   the  request   is   made  may  also 
order  that  the  letters  rogatory  be  forwarded  to  another  court,  withoutv 
returning  them  to  the  requesting  judge,  when  he  can  not  comply  with 
said  request  for  the  reason  that  the  person  with  whom  the  judicial 
proceedings  are  to  be  had,  is  in  another  jurisdiction. 

ART.  298.  The  bearer  of  letters  rogatory,  letters  requisitorial,  or 
letters  mandatory  shall  not  be  informed  of  the  orders  issued  for  the 
execution  thereof,  except  in  the  following  cases: 

1.  When  it  is  requested  in  the  said  letters  that  some  proceedings  be 
had  with  the  citation,  intervention,  or  attendance  of  the  person  who 
may  have  presented  the  same. 

2.  When  it  is  necessary  to  summon  him  to  furnish  some  data  or 
information  which  may  facilitate  the  execution  of  the  request.1 

ART.  299.  When  the  execution  of  letters  rogatory  or  letters  requis- 
itorial shall  be  delayed,  attention  shall  be  called  thereto  by  means  of 
an  official  communication,  transmitted  at  the  instance  of  the  party 
interested. 

If,  notwithstanding  the  communication,  the  delay  continues,  the 
requesting  judge  shall  inform  the  immediate  superior  of  the  judge 
requested  thereof,  by  means  of  letters  requisitorial,  and  said  superior 
shall  impose  a  disciplinary  correction  upon  the  tardy  judge,  without 
prejudice  to  the  greater  liability  which  he  may  incur. 

The  same  means  shall  be  employed  by  the  person  issuing  a  request 
or  letters  mandatory  to  compel  his  tardy  inferior  to  return  the  same 
fully  executed. 

ART.  300.  When  service  of  summons  is  to  be  made  or  any  other  judi- 
cial proceeding  is  to  be  performed  in  a  foreign  country,  the  letters 
rogatory  shall  be  transmitted  through  diplomatic  channels,  or  by  the 
means  and  in  the  manner  prescribed  in  treaties,  and  in  the  absence 
of  treaties,  as  prescribed  in  the  general  provisions  of  the  supreme 
government. 

In  any  case,  principles  of  reciprocity  shall  be  observed. 


in  the  two  cases  mentioned  shall  the  bearer  of  letters  rogatory,  not  a 
party  to  the  proceedings,  be  informed  of  the  orders  issued  for  the  fulfillment 
thereof.  —  Decisions  of  January  8,  February  1  and  6,  1886, 


LAW   OF   CIVIL   PEOCEDURE.  61 

The  same  rules  shall  be  observed  for  the  execution  in  the  islands  of 
Cuba  and  Porto  Rico  of  the  letters  rogatory  of  foreign  courts,  requiring 
the  performance  of  some  judicial  proceeding.1 

SECTION  VI. — Judicial  periods  of  time,  compulsory  process,  and  defaults. 

ART.  301.  Judicial  acts  and  proceedings  shall  take  place  within  the 
period  fixed  for  each  of  them. 

When  no  time  is  fixed,  it  shall  be  understood  that  they  are  to  take 
place  without  delay. 

Any  violation  of  the  provisions  of  this  article  shall  be  disciplinarily 
corrected,  according  to  the  gravity  of  the  case,  without  prejudice  to 
the  right  of  the  party  injured  to  demand  any  indemnity  which  may 
be  proper  for  damages  or  other  liabilities.2 

ART.  302.  Judges  and  courts  shall,  in  a  proper  case,  impose  said 
disciplinary  correction  upon  their  assistants  and  subalterns  without 
the  necessity  of  said  correction  being  requested  by  a  party,  and  should 
they  not  do  so,  they  shall  in  their  turn  incur  liability. 

Judges  and  courts  shall  also  impose  said  correction  upon  their  sub- 
ordinates, when  the  matter  in  which  said  violation  has  been  committed 
has  been  brought  before  them  on  appeal,  or  in  any  other  manner,  or 
when  proper  complaint  has  been  made  by  any  of  the  litigants. 

ART.  303.  Judicial  periods  of  time  shall  commence  on  the  day  fol- 
lowing the  service  of  a  summons,  citation,  or  notification,  and  the  last 
day  of  said  period  shall  be  counted.3 

ART.  304.  In  no  period  of  time  designated  by  days,  shall  days  be 
counted  upon  which  judicial  proceedings  can  not  be  taken. 

Neither  shall  the  days  of  the  summer  recess  be  counted  in  the  period 
of  time  within  which  to  take  an  appeal  to  the  supreme  court  for  annul- 
ment of  judgment  for  breach  of  law,  unless  actions  of  unlawful  detainer 
are  in  question,  or  proceedings  of  voluntary  jurisdiction,  or  any  other 

1  By  royal  order  of  March  9, 1888,  it  is  prescribed  that  no  letters  rogatory  or  letters 
requisitorial  shall  be  directed  to  foreign  countries  in  civil  matters,  unless  the  person 
interested  shall  previously  deposit  in  the  central  treasury  an  amount  considered 
sufficient,  in  the  judgment  of  the  presiding  judge  of  the  audiencia,  to  cover  the  costs 
of  the  service  and  all  other  expenses  which  may  arise  in  the  matter. 

Letters  rogatory  must  be  addressed  to  the  foreign  judges  who  are  to  execute  them, 
and  it  is  forbidden  to  forward  them  to  the  consuls,  legations,  or  diplomatic  repre- 
sentatives in  the  country  where  they  are  to  be  executed. 

In  letters  rogatory  of  this  character,  it  is  prescribed  that  the  clause  offering  reci- 
procity for  the  execution  in  Spain  of  similar  requests  be  not  omitted. 

2  Judicial  periods  of  time  are  binding  upon  the  parties,  whatever  be  the  judicial 
character  of  the  litigant,  even  though  he  be  the  representative  of  the  State. — Decision 
of  May  24,  1887. 

3  These  days  are  and  must  be  understood  as  natural  days,  including  the  twenty- 
four  hours  from  midnight  to  midnight,  so  that  on  the  day  of  the  expiration  of  a 
period  instruments  may  be  filed  until  twelve  o'clock  midnight. — Decision  of  December 
12,  1861. 


62  LAW    OF   CIVIL   PROCEDURE. 

urgent  matters  which  may  be  decided  in  the  vacations  chamber  (sola 
de  vacaciones).1 

ART.  305.  Periods  of  time  designated  by  months  shall  be  counted 
by  natural  months,  without  excluding  illegal  working  days. 

In  such  cases,  if  the  period  should  terminate  on  a  Sunday  or  other 
holiday,  it  shall  be  understood  as  extended  to  the  following  legal 
working  day. 

ART.  306.  Periods  of  time,  the  extension  of  which  is  not  expressly 
forbidden  by  this  law,  may  be  extended. 

In  order  to  grant  an  extension  it  is  necessary— 

1.  That  it  be  requested  before  the  expiration  of  the  period. 

2.  That  good  cause  be  shown  therefor,  to  the  satisfaction  of  the 
judge  or  court,  without  there  being  any  remedy  against  his  decision 
on  the  subject. 

ART.  307.  Not  more  than  one  extension  can  be  demanded  or  granted; 
said  extension  may  be  granted  for  the  period  of  time  which  the  judge 
or  court  may  consider  reasonable,  but  in  no  case  shall  it  exceed  one- 
half  that  fixed  by  law  for  the  term  extended. 

ART.  308.  After  the  extendible  periods,  or  the  extension  granted  at 
a  proper  time,  has  elapsed,  if  the  records  be  in  the  clerk's  office,  the 
provisions  contained  in  article  520  shall  be  observed. 

If  the  records  should  be  in  the  possession  of  any  of  the  parties,  as 
soon  as  they  are  requested  by  the  opposite  party,  the  former  shall  be 
ordered  to  return  them  within  twenty-four  hours,  under  a  penalty  of 
not  less  than  25  nor  more  than  65  pesetas  for  every  day  upon  which 
he  shall  fail  to  so  return  them.  This  fine  shall  be  imposed  personally 
upon  the  solicitor,  if  one  should  take  part  in  the  case,  unless  he  shall 
prove  his  blamelessness. 

If  three  days  should  elapse  without  the  records  being  returned,  the 
clerk  shall,  under  his  liability  and  without  requiring  a  new  order, 
proceed  to  recover  them  of  the  person  in  whose  possession  they  may 
be;- and  if  they  should  not  at  once  be  delivered  to  him  upon  demand, 
he  shall  inform  the  judge  or  court,  so  that  an  order  may  be  issued  for 
such  proceedings  to  be  instituted  as  are  proper  for  concealment  of 
process. 

ART.  309.  More  than  one  writ  for  compulsory  process  shall  not  be 
allowed.  The  costs  thereof  and  of  the  other  proceedings  until  the 
return  of  the  records,  shall  in  every  case  be  on  the  account  of  the 
person  against  whom  said  process  is  issued. 

ART.  310.  The  periods  fixed  for  the  following  can  not  be  extended: 

1.  For  appearance  in  an  action. 

1  For  the  purpose  of  taking  an  appeal  for  annulment  of  judgment  the  days  of  the 
summer  recess  are  counted  in  proceedings  of  voluntary  jurisdiction. — Decision  of 
November  11,  1889. 

Periods  which  can  be  extended  which  elapse  before  an  extension  has  been  applied 
for,  become  final. — Decision  of  December  10,  1864. 


LAW    OF    CIVIL    PROCEDURE.  63 

2.  For  the  taking  of  dilatory  exceptions. 

3.  For  motions  for  a  rehearing,  appeals  or  petitions  for  modification 
or  revocation  of  judgment  (recurso  de  suplica),  and  for  the  prepara- 
tion and  interposition  of  the  remedy  of  complaint  against  the  refusal 
to  allow  an  appeal. 

4:.  To  request  the  elucidation  of  some  judgment,  or  to  supply  an 
omission  therein. 

5.  For  an  appellant  to  appear  before  the  superior  court  in  obedience 
to  the  summons  served  in  consequence  of  the  admission  of  an  appeal. 

6.  To  appear  before  the  superior  court  with  the  proper  proof,  for 
the  purpose  of  enlarging  an  appeal  allowed  for  a  review  of  the  pro- 
ceedings (en  un  efecto). 

7.  To  request  a  certificate  of  judgment  for  the  purpose  of  taking  an 
appeal  for  annullment  of  judgment,  for  breach  of  law  or  of  legal  doc- 
trine, and  to  prepare  it  for  presentation  before  the  Supreme  Court. 

8.  To  take  an  appeal  for  annullment  of  judgment  for  breach  of 
form. 

9.  To  appear  before  the   Supreme   Court   in   consequence  of  the 
allowance  of  the  appeal  for  annullment  of  judgment,  or  for  interposing 
the  remedy  of  complaint  against  the  order  by  which  the  granting  of  a 
certificate  of  the  judgment  is  denied,  or  the  appeal  disallowed. 

10.  In  any  other  matter  with  regard  to  which  there  ma}7  be  a  clear 
and  express  declaration,  to  the  effect  that  after  a  certain  time  has 
elapsed,  no  action,  exception,  remedy,  or  rights  upon  which  the  same 
are  based,  be  litigated. 

ART.  311.  Periods  of  time  which  can  not  be  extended,  can  not  be 
suspended  nor  reopened  by  restoration  or  otherwise,  after  the  expira- 
tion thereof. 

Said  periods  of  time  can  only  be  suspended  during  their  course  by 
reason  of  force  majeure  which  prevents  their  utilization.1 

ART.  312.  After  periods  of  time  which  cannot  be  extended  have 
elapsed,  the  proceeding  or  remedy  which  could  have  been  advanced, 
shall  be  considered  as  lapsed  and  forfeited  by  law,  without  the  neces- 

1  If  an  action  is  brought  against  a  municipality,  and  if  the  mayor  is  cited  and  sum- 
moned and  should  not  enter  an  appearance,  and  a  judgment  is  rendered  in  his 
absence  and  default,  against  the  municipality,  the  latter  has  the  benefit  of  restitution 
in  integrum,  the  defence  having  been  abandoned  without  article  311  of  the  law  of 
civil  procedure  being  opposed  thereto. — Decision  of  June  11,  1883. 

Restitution  in  integrum  for  damages  caused  to  minors  is  not  of  those  included  in  this 
article. — Decisions  of  January  SI,  1882,  and  June  2,  1886. 

The  law  of  civil  procedure  does  not  establish  any  differences  between  colitigants, 
because  the  periods  of  time  within  which  to  appeal  from  orders,  etc.,  can  not  be 
extended  for  any  reason  whatsoever,  and  can  not  be  suspended  after  their  termina- 
tion by  way  of  restitution  nor  for  any  other  reason.  The  department  of  public  pros- 
ecution is  subject  to  the  provisions  of  said  articles. — Decision  of  May  21,  1870. 

^Restitution  in  integrum  is  not  recognized  in  the  Civil  Code.  (See  articles  1299 
and  1301.) 


64  LAW    OF    CIVIL    PROCEDURE. 

sity  of  compulsory  process  nor  of  entry  of  default,  except  in  the  case 
referred  to  in  number  1  of  article  310. 

No  petition  or  claim  of  any  kind  shall  be  admitted  which  conflicts 
with  this  provision,  and  if  it  should  become  necessary  to  recover  the 
record  in  order  to  properly  continue  the  proceedings,  the  procedure 
established  in  article  308  shall  be  followed. 

TITLE  VII. 

DISPATCH,  HEAKING,  VOTING  TJPON  AND  DECISION  OF  JUDICIAL  MATTERS. 

SECTION  I. — Ordinary  dispatch  and  hearing. 

ART.  313.  Proceedings  for  the  taking  of  evidence  and  the  hearing 
of  actions  and  other  judicial  matters,  shall  be  held  in  open  court. 

The  ordinary  dispatch  of  business  shall  also  be  publicly  performed 
when  requested  by  one  of  the  parties. 

ART.  314.  Notwithstanding  the  provisions  contained  in  the  fore- 
going article,  judges  and  courts  may  order,  at  their  own  instance  or  at 
the  instance  of  a  party,  that  the  dispatch  and  hearing  of  matters  be  had 
behind  closed  doors,  when  so  required  by  good  order  or  good  morals. 

If  this  action  is  to  be  taken  at  the  beginning  of  the  hearing,  after 
hearing  the  parties  briefly  thereupon,  the  court  shall  immediately 
decide  what  it  may  deem  proper. 

There  shall  be  no  remedy  whatsoever  against  a  decision  on  this 
point. 

ART.  315.  Secretaries  and  clerks  shall,  in  the  ordinary  dispatch  of 
business,  make  a  verbal  report  on  the  same  day  on  which  instruments 
are  presented  or  the  decisions  rendered,  and  should  this  not  be  pos- 
sible, on  the  day  following. 

ART.  316.  Orders  for  proceeding  in  a  matter  shall  be  issued  at  the 
time  a  report  is  made  thereon,  or  within  the  two  days  following,  at 
the  utmost. 

In  audiencias,  only  in  cases  where  a  decision  has  to  contain  a  state- 
ment of  the  reason  for  its  rendition,  or  when  there  is  necessity  of 
examining  data  for  the  purpose  of  rendering  it,  can  the  respective 
chamber  order  that  a  report  be  made  thereon  by  a  relator. 

ART.  317.  Chambers  shall  meet  with  at  least  three  and  not  more 
than  five  justices  for  the  ordinary  dispatch  of  business  and  for  the 
decision  of  incidental  issues.  An  agreement  can  only  be  reached  by 
an  absolute  majority  of  votes. 

ART.  318.  Judges  of  first  instance  shall  personally  examine  the 
causes  and  proceedings,  before  rendering  decisions  and  rulings. 

In  an  audiencia  a  report  shall  be  made  by  the  clerk  of  the  chamber 
or  by  the  relator,  in  a  proper  case,  who  shall  prepare  the  proper 
brief  when  prescribed  by  law. 


LAW    OF    CIVIL    PROCEDURE.  65 

ART.  319.  The  relator  shall  state,  at  the  end  of  the  brief,  under 
his  personal  liability,  whether  or  not  in  the  previous  proceedings  the 
prescriptions  of  this  law  with  regard  to  periods  of  time  and  continu- 
ances, compulsory  process,  recovery  of  the  record,  and  others  relating 
to  the  order  and  form  of  procedure,  have  been  observed,  as  well  as 
whether  or  not  unnecessary  or  unauthorized  acts  have  been  performed, 
and  shall  make  a  note  of  all  defects  or  omissions  which  may  appear, 
or  state,  otherwise,  that  the  legal  prescriptions  have  been  observed  in 
the  procedure  in  the  cause. 

ART.  320.  The  relator  shall  make  the  briefs,  strictly  observing  the 
the  regular  order  in  which  they  were  ordered  made.  They  shall  only 
give  preference  to  the  matters  mentioned  in  the  following  article. 

ART.  321.  Hearings  of  actions  and  incidental  issues  shall  be  set  in 
the  order  in  which  they  are  at  .issue,  and  without  the  necessity  of  a 
request  of  the  parties  therefor. 

From  the  foregoing  are  excepted  proceedings  for  temporary  main- 
tenance, questions  of  competency,  proceedings  for  consolidation,  chal- 
lenges, matters  of  unlawful  detainer,  summary  proceedings  relat- 
ing to  property,  proceedings  for  the  custody  of  persons,  actions  of 
lesser  import  and  executory  actions,  denials  of  justice  or  of  proof, 
and  other  matters  which,  by  provision  of  law  or  by  an  order  of  the 
chamber,  are  to  be  preferred  for  very  special  reasons,  and  the  hearing 
of  which,  after  they  are  at  issue,  shall  be  set  ahead  of  other  matters 
which  may  be  unset  at  the  time. 

It  shall  be  the  duty  of  the  presiding  judge  of  the  chamber  to  set 
matters  for  hearing. 

ART.  322.  All  actions  shall  be  heard  on  the  day  set  therefor. 

If  at  the  end  of  the  hours  set  for  hearing  some  matter,  it  should  not 
be  concluded,  it  may  be  suspended  and  continued  to  the  following  day 
or  days,  unless  the  presiding  judge  shall  extend  the  time  therefor. 

ART.  323.  The  hearing  of  an  action  on  the  day  set  therefor  can 
only  be  suspended  in  the  following  cases: 

1.  When  the  continuation  of  another  cause  from  the  preceding  day 
shall  prevent  it. 

2.  On  account  of  there  not  being  a  sufficient  number  of  justices  to 
render  judgment. 

3.  On  account  of  the  death  or  cessation  in  the  action  of  the  solicitor 
of  any  of  the  parties. 

4.  By  reason  of  the  death  of  any  of  the  litigants. 

5.  When  a  unanimous  request  is  made  therefor  by  the  solicitors  of 
the  parties,  alleging  good  cause  in  the  judgment  of  the  court. 

6.  On  account  of  the  illness  of  the  attorney  of  the  party  requesting 
the  suspension  sufficiently  proven  to  the  satisfaction  of  the  chamber, 
provided  that  said  request  be  made  48  hours  previous  to  that  set  for 
the  hearing,  unless  the  illness  should  have  occurred  after  this  period. 

5901 5 


66  LAW    OF    CIVIL    PROCEDURE. 

7.  On  account  of  the  death  of  the  spouse,  or  of  any  of  the  ascend- 
ants or  descendants  of  an  attorney  in  the  action,  occurring  before  the 
nine  days  prior  to  that  set  for  the  hearing. 

8.  When  an  attorney  in  the  action  is  required  to  attend  two  hear- 
ings on  the  same  day  before  different  courts,  which  fact  shall  be  prop- 
erly proven,  in  which  case  the  superior  court  shall  have  preference 
over  the  inferior  one. 

ART.  324.  In  the  case  of  a  suspension  of  a  hearing,  another  day 
shall  be  set  as  soon  as  the  reason  for  the  suspension  shall  have  dis- 
appeared, without  altering  the  order  of  hearings  already  set. 

ART.  325.  For  the  hearings  of  causes  or  incidental  issues,  the  cham- 
bers shall  meet  with  the  number  of  justices  necessary  to  render  judg- 
ment in  the  matter  involved. 

ART.  326.  When  it  shall  become  necessary  to  make  up  the  number 
of  justices  of  a  chamber,  with  justices  from  another,  or  with  substi- 
tutes, before  the  commencement  of  the  hearing  the  names  of  those 
designated  shall  be  communicated  to  the  solicitors  of  the  parties,  and 
the  hearing  shall  at  once  be  proceeded  with,  unless  any  of  the  justices 
shall  at  that  time  be  challenged,  even  though  verbally. 

In  such  case  the  hearing  shall  be  suspended,  and  the  challenge  being 
reduced  to  writing  and  presented  before  the  third  day,  this  issue  shall 
be  heard  and  determined  in  the  manner  prescribed. 

If  the  challenge  should  not  be  presented  within  said  period,  it  shall 
not  be  admitted,  and  the  challenging  party  shall  be  fined  the  amount 
prescribed  in  article  212,  and  shall  be  taxed  the  costs  of  the  suspen- 
sion, a  new  day  being  set  for  the  hearing  of  the  cause  as  soon  as 
possible. 

ART.  327.  In  the  case  of  the  first  paragraph  of  the  foregoing  article, 
if  the  hearing  shall  have  been  had  on  account  of  no  challenge  having 
been  interposed,  the  voting  for  judgment  shall  be  suspended  for  three 
days.  The  substitute  justices  may  be  challenged  during  this  period, 
and  after  said  period  has  elapsed,  without  a  challenge  having  been 
interposed,  the  time  for  the  rendition  of  judgment  shall  immediately 
commence  to  run. 

ART.  328.  If  the  challenge  should  be  interposed  within  said  period, 
and  allowed,  the  hearing  shall  be  vacated  and  it  shall  be  had  anew 
before  competent  justices,  at  the  earliest  day  which  can  be  set. 

If  the  challenge  be  disallowed,  the  justices  who  attended  the  hearing 
shall  render  judgment,  the  period  within  which  to  render  it  beginning 
on  the  day  following  the  decision  upon  the  challenge. 

ART.  329.  If,  after  the  beginning  of  the  hearing  of-  a  cause,  one  or 
more  of  the  justices  shall  fall  ill  or  become  otherwise  unable  to  con- 
tinue attending  the  same,  and  there  should  be  no  probability  that  the 
said  justice  or  justices  will  be  able  to  attend  within  a  few  days,  a  new 
hearing  shall  be  had,  the  number  of  justices  being  filled  from  among 
those  who  should  substitute  those  disabled. 


LAW    OF    CIVIL    PROCEDURE.  67 

If,  notwithstanding  the  disability  of  one  or  more  justices,  a  sufficient 
number  shall  remain  to  render  judgment,  a  suspension  shall  not  be 
necessary,  nor  a  new  hearing,  in  a  proper  case. 

ART.  330.  Hearings  shall  begin  with  the  reading  of  the  brief  made 
by  the  relator;  and  in  cases  in  which  no  brief  has  been  made,  with 
a  succinct  statement  made  by  the  said  relator,  or  by  the  recording 
clerk  of  the  chamber,  of  all  matters  tending  to  furnish  information  on 
the  question  at  issue,  when  the  law  does  not  provide  otherwise,  after 
which  the  attorneys  for  the  parties  appearing  thereat  shall  present 
their  arguments  in  their  order. 

The  latter  may  make  a  second  argument,  with  the  consent  of  the 
presiding  judge,  for  the  purposes  of  correcting  facts  or  statements. 

The  hearing  shall  be  considered  as  ended  when  the  presiding  judge 
pronounces  the  word  "heard." 

AKT.  331.  Parties  to  the  action  may,  with  the  consent  of  the  presid- 
ing judge,  verbally  state  what  they  may  deem  proper  for  their  defense 
at  the  conclusion  of  the  hearing  and  before  it  is  declared  closed,  or 
when  any  petition  is  presented  on  their  behalf. 

The  presiding  judge  shall  allow  them  to  speak,  as  long  as  they  confine 
themselves  to  the  questions  at  issue  and  observe  the  proper  respect. 

ART.  332.  The  presiding  judge  shall  call  to  order  any  attorney  who 
clearly  strays  from  the  question  at  issue  in  his  argument,  or  who  loses 
time  with  impertinent  and  unnecessary  arguments;  and  if  he  shall  per- 
sist therein  after  having  been  admonished  twice,  permission  to  speak 
may  be  withdrawn  from  him. 

ART.  333.  It  is  the  duty  of  the  justice  presiding  at  the  hearing, 
assisted  by  the  chamber,  in  a  proper  case,  to  preserve  good  order  and 
to  require  that  the  respect  and  consideration  due  the  court  be  main- 
tained, at  once  correcting  any  offenses  which  may  be  committed,  in  the 
manner  prescribed  in  title  13  of  this  book. 

ART.  334.  The  hearing  shall  be  entered  upon  the  record  by  means  of 
statements  drafted  by  the  relator  or  clerk  of  the  chamber,  stating  the 
names  of  the  justices  composing  the  chamber,  the  names  of  the  attor- 
neys making  the  arguments,  of  the  solicitors  who  may  have  attended, 
and  the  time  consumed  at  said  hearing. 

If  any  of  the  attorneys  for  the  parties  shall  raise  any  collateral  mat- 
.ter  at  the  hearing  which  requires  a  decision,  it  shall  also  be  included  in 
said  statement,  which  shall  be  read,  in  such  case,  to  the  attorneys  at 
the  conclusion  of  the  hearing,  for  their  approval  and  signatures. 

SECTION  II. — Justices  " ponentes." 

ART.  335.  A  justice  "ponente"  shall  be  selected  for  each  cause,  all 
the  justices  of  the  chamber  being  selected  for  these  duties  in  their 
'turn,  with  the  exception  of  the  presiding  judge  thereof. 


68  LAW    OF    CIVIL    PKOCEDUBE. 

The  presiding  judge  shall,  nevertheless,  also  undertake  said  duties 
in  his  turn  when  for  any  reason  whatsoever  the  number  of  justices 
of  a  chamber,  including  the  presiding  judge,  should  be  reduced  to 
three. 

ART.  336.  It  shall  be  the  duty  of  the  ponente — 

1.  To  report  to  the  chamber  with  reference  to  the  propriety  of  mak- 
ing any  amendments  in,  or  additions  to,  the  abstract  requested  by  the 
litigants.     The  records  shall  previously  be  delivered  to  the  litigants 
for  this  purpose. 

2.  To  examine  and  classify  as  to  the  pertinency  of  all  interrogatories, 
depositions,   and   proposals   of   evidence   submitted   by  the  parties. 
Should  any  objections  be  made  to  the  classification,  it  shall  be  decided 
by  the  chamber. 

3.  To  preside  at  the  presentation  of  all  evidence  and  to  receive  any 
declarations  which  the  chamber  may  order,  without  prejudice  to  the 
provisions  of  article  254. 

4.  To  authenticate  the  ratifications  and  to  make  the  appointments 
for  the  performance  of  every  duty. 

5.  To  verbally  submit  to  the  deliberation  of  the  chamber  all  find- 
ings of  fact  and  conclusions  of  law>  and  the  decision  which,  in  his 
judgment,  should  be  rendered,  but  without  making  a  draft  thereof. 

6.  To  draft  the  rulings  and  judgments  agreed  upon  by  the  chambers, 
even  though  his  vote  has  not  been  in  accordance  with  that  of  the 
majority. 

In  such  case,  the  presiding  judge  of  the  chamber  may  intrust  the 
drafting  of  the  judgment  to  another  justice,  if  he  considers  it  advis- 
able by  reason  of  special  circumstances. 

7.  To  read  the  judgment  in  open  court. 

Should  he  not  be  present  in  the  chamber  on  the  day  the  judgment  is 
to  be  read,  the  presiding  judge  shall  act  in  his  place. 

8.  Any  other  duties  which  may  be  intrusted  to  the  ponente  by  a 
special  provision  of  law. 

ART.  337.  It  shall  also  be  the  duty  of  the  justice  ponente  to  investigate 
whether  legal  formalities  have  been  observed;  whether  or  not  instru- 
ments for  which  this  law  prescribes  precise  forms  have  been  drafted 
in  accordance  thereto,  or  whether  other  abuses  have  been  committed, 
either  of  commission  or  of  omission,  in  the  proceedings  of  the  action, 
verifying  those  noted  by  the  relator;  and  if  there  exists  a  mistake 
which  should  be  corrected,  he  shall  call  the  attention  of  the  chamber 
thereto,  in  order  that  it  may  definitely  determine  what  it  may  deem 
proper,  for  the  purpose  of  correcting  the  same  and  to  procure  a  punc- 
tual and  strict  observance  of  this  law,  in  letter  as  well  as  in  spirit,  by 
all  officials  taking  part  in  actions. 


LAW    OF    CIVIL    PROCEDURE.  69 

SECTION  III. —  Voting  and  decisions  in  actions. 

ART.  338.  After  a  hearing  in  a  cause  has  been  closed,  any  of  the 
justices  may  demand  the  record  for  the  purpose  of  making  a  private 
examination  thereof. 

When  several  justices  request  said  record,  the  one  presiding  shall 
designate  the  period  of  time  that  each  may  retain  the  same,  in  order 
that  judgment  may  be  rendered  within  the  time  fixed  therefor. 

ART.  339.  With  the  exception  of  the  case  referred  to  in  the  foregoing 
article,  rulings  and  judgments  shall  be  discussed  and  voted  upon 
immediately  after  the  hearing;  and  if  this  be  not  possible  on  account 
of  other  requirements  of  the  service,  the  presiding  judge  shall  set  a 
day  therefor,  within  the  periods  respectively  fixed  by  law. 

ART.  340.  After  the  hearing,  or  after  the  citation  for  judgment,  and 
before  the  rendition  of  judgment,  judges  and  courts  may  order,  in 
furtherance  of  justice: 

1.  That  any  document  which  they  may  deem  necessary  for  the  pur- 
pose of  properly  elucidating  the  rights  of  the  litigants  be  brought 
before  them. 

2.  Demand  a  judicial  confession  of  any  of  the  litigants  of  any  facts 
which  they  may  consider  of  importance  in  the  question  at  issue,  and 
which  have  not  been  proved. 

3.  That  any  investigation  or  appraisement  be  made  that  they  may 
consider  necessary,  or  that  those  already  made  be  enlarged. 

4.  That  any  records  which  bear  any  relation  to  the  action  be  brought 
before  them. 

There  shall  be  no  remedy  whatsoever  against  orders  of  this  charac- 
ter, and  the  parties  shall  not  have  any  intervention  therein,  except 
that  granted  them  by  the  court.1 

1  The  parties  have  no  right  to  intervene  in  an  act,  the  only  object  of  which  is  to 
ascertain  or  explain  some  matter  to  the  satisfaction  of  the  judges. — Decision  of 
December  11,  1865. 

Orders  in  furtherance  of  justice  are  not  issues  such  as  are  recognized  by  the  law  of 
civil  procedure,  nor  are  the  parties  given  any  other  intervention  therein,  than  that 
specifically  designated  in  the  order  itself. — Decision  of  April  9,  1866. 

Proceedings  for  the  furtherance  of  justice  are  not  instituted  for  private  interests, 
but  for  a  better  administration  of  justice.  Their  admission,  therefore,  is  to  be  passed 
upon  by  the  court  without  affecting  any  right  of  the  parties  litigant. — Decision  of 
March  19,  1869. 

Judges  may  also  order  the  examination  of  documents  in  the  furtherance  of  jus- 
tice.— Decision  of  June  28,  1892. 

The  absence  of  a  citation  of  the  parties  to  attend  proceedings  instituted  for  the 
furtherance  of  justice,  does  not  constitute  a  breach  of  form,  because  the  parties  have 
no  other  intervention  therein  than  that  expressly  granted  them  by  the  judge  or 
court. — Decision  of  July  8,  1885. 


70  LAW    OF    CIVIL    PROCEDURE. 

AKT.  341.  The  period  within  which  the  proceedings  for  the  further- 
ance of  justice  shall  be  performed,  shall  be  fixed  in  the  said  order, 
and  if  it  be  not  possible  to  determine  it,  the  judge  or  chamber  shall 
see  that  said  proceedings  are  executed  without  delay  and  shall,  on  his 
or  its  own  motion,  issue  the  reminders  and  compulsory  process  which 
may  be  required. 

ART.  342.  In  such  cases,  the  period  within  which  judgment  is  to  be 
rendered  shall  be  suspended  from  the  date  of  the  order  issued  in  fur- 
therance of  justice  until  it  has  been  fulfilled,  after  which  and  during 
the  remaining  time,  the  proper  ruling  or  judgment  shall  be  rendered 
without  a  rehearing. 

ART.  343.  The  discussion  and  voting  for  judgments  and  rulings 
shall  always  be  held  behind  closed  doors,  and  before  or  after  the  hours 
designated  for  the  ordinary  dispatch  of  business  and  for  hearings. 

After  the  voting  has  begun,  it  can  not  be  interrupted  except  for  an 
insuperable  cause. 

ART.  344.  The  ponente  shall  submit  to  the  chamber  for  its  deliber- 
ation, all  questions  of  fact  and  of  law  and  the  decision  to  be  included 
in  the  judgment,  and  the  voting  shall  take  place  after  the  necessary 
discussion. 

ART.  345.  The  ponente  shall  vote  first,  and  afterwards  the  other 
justices  in  the  inverse  order  of  their  seniority  with  regard  to  length 
of  service.  The  presiding  judge  shall  vote  last. 

ART.  346.  When  any  justice  should  be  transferred,  retired,  removed, 
or  suspended,  he  shall  vote  upon  all  actions,  the  hearing  of  which  he 
may  have  attended,  and  which  have  not  as  yet  been  decided. 

ART.  347.  If,  after  the  hearing,  any  justice  shall  become  disabled, 
to  such  an  extent  that  he  can  not  attend  the  voting,  he  shall  give  his 
vote  in  writing,  properly  based  and  signed,  and  shall  forward  it  directly, 
under  closed  cover,  to  the  presiding  judge  of  the  chamber.  If  he  be 
not  able  to  write  or  sign,  he  shall  be  assisted  by  the  relator  in  the 
action. 

The  vote  thus  cast  shall  be  attached  to  the  others,  and  shall  be  pre- 
served, together  with  the  book  of  judgments,  by  the  presiding  judge 
and  rubricated  by  him. 

If  said  disabled  justice  should  be  unable  to  vote  even  in  this  manner, 
the  voting  in  the  action  shall  be  done  by  the  other  justices  who  may 
have  attended  the  hearing,  should  there  be  a  sufficient  number  to  form 
a  majority.  Otherwise,  a  new  hearing  shall  be  had  with  the  presence  of 
those  who  may  have  attended  the  former  hearing,  and  with  the  justice 
or  justices  who  are  to  replace  those  disabled. 

ART.  348.  Three  concurring  votes  are  necessary  for  the  rendition  of 
judgments  by  audiencias. 

If  the  decision  is  to  be  rendered  in  the  form  of  a  ruling  (auto),  the 
votes  of  an  absolute  majority  of  the  justices  who  shall  have  attended 
the  hearing  shall  be  necessar}^. 


LAW    OF    CIVIL    PEOCEDUBE.  71 

ART>.  349.  If  there  be  a  disagreement  by  reason  of  the  absence  of  a 
sufficient  number  of  votes  to  render  judgment,  it  shall  be  adjusted  in 
the  manner  prescribed  in  the  following  section. 


SECTION  IV. — Manner  of  adjusting 


ART.  350.  If,  in  voting  upon  a  judgment,  ruling,  or  order  of  mere 
practice,  there  should  not  be  a  majority  of  votes  upon  any  findings  of 
fact  or  conclusions  of  law  to  be  made,  or  upon  the  decision  to  be  ren- 
dered, the  discussion  and  voting  upon  the  points  not  agreed  upon  shall 
be  repeated. 

If  there  should  be  no  majority  at  the  second  voting,  an  order  shall 
be  made  declaring  a  disagreement  and  ordering  a  new  hearing  before 
an  increased  number  of  justices. 

ART.  351.  The  new  hearing  shall  be  held  before  the  same  justices 
who  attended  the  previous  one,  and  two  additional  ones,  if  there  were 
an  odd  number  of  dissenting  justices,  and  three,  if  the  number  were 
even. 

ART.  352.  The  following  shall  attend,  in  the  order  given,  for  the 
purpose  of  adjusting  disagreements: 

1.  The  presiding  judge  of  the  court. 

2.  The  associate  justices  of  the  respective  chamber  who  have  not 
heard  the  action. 

3.  The  senior  justices  in  length  of  service  of  the  other  chambers, 
with  the  exception  of  the  presiding  judges  thereof. 

ART.  353.  The  presiding  judge  of  the  court  shall  set  the  time  for 
tho  hearing  of  matters  upon  which  there  has  been  a  disagreement, 
after  receiving  notice  thereof  from  the  presiding  judge  of  the  proper 
chamber,  and  after  designating  the  justices  who  are  to  adjust  said 
disagreement. 

ART.  354.  The  names  of  the  justices  who  are  to  adjust  the  disagree- 
ments, shall  be  made  known  to  the  litigants  in  due  time,  in  order  that 
they  may  allege  their  rights  of  challenge,  if  proper. 

ART.  355.  The  disagreeing  justices  shall  state  with  clearness,  in  the 
order  declaring  the  disagreement,  the  points  on  which  they  agree  and 
those  upon  which  they  disagree,  and  shall  confine  themselves  to  decid- 
ing such  questions,  with  the  justices  adjusting  the  disagreement,  upon 
which  no  agreement  has  been  reached. 

ART.  356.  Before  commencing  to  hear  an  action  upon  which  there 
has  been  a  disagreement,  the  presiding  judge  of  the  chamber  who  is 
to  adjust  said  disagreement  shall  ask  the  disagreeing  justices  whether 
they  insist  in  their  opinions,  and  only  in  case  of  an  affirmative  answer 
-shall  the  hearing  be  continued. 

If,  upon  voting  on  a  judgment  disagreed  upon,  the  disagreeing  jus- 
tices should  come  to  an  agreement  in  sufficient  number  to  form  a 
majority,  the  proceedings  shall  not  be  continued. 


72  LAW    OF    CIVIL    PROCEDURE. 

ART.  357.  If,  upon  voting  on  a  judgment  by  a  chamber  sitting  to 
adjust  a  disagreement,  there  should  not  be  a  majority  upon  the  points 
disagreed  upon,  a  new  vote  shall  be  taken,  but  only  upon  the  two 
opinions  which  obtained  the  greater  number  of  votes  at  the  preceding 
one. 

TITLE  VIII. 

MANNEK  AND  FOEM  IN  WHICH  JUDICIAL  DECISIONS  SHALL  BE  EENDEEED. 

SECTION  I. — Judgments. 

ART.  358.  Judgments  must  be  clear,  precise,  and  congruent  to  the 
pleadings  and  other  allegations  duly  advanced  in  the  action,  and  shall 
contain  the  declarations  required  by  the  latter,  deciding  for  or  against 
the  defendant  all  questions  which  have  been  the  object  of  the  argu- 
ments.1 

If  there  should  be  several  issues,  the  decisions  pertaining  to  each 
shall  be  separately  rendered.2 

ART.  359.  If  there  should  be  an  adjudication  of  profits,  interests, 
losses,  or  damages,  the  net  amount  thereof  shall  be  determined  or  the 
bases  shall  be  fixed  according  to  which  the  liquidation  is  to  be  made. 

Only  in  cases  in  which  it  is  impossible  to  do  either,  shall  an  adjudi- 
cation be  made,  reserving  the  right  to  fix  the  amount  thereof  and  its 
enforcement  in  the  execution  of  the  judgment.3 

ART.  360.  Judges  and  courts  can  not,  under  any  pretext  whatsoever, 
postpone,  delay,  or  refuse  to  decide  questions  discussed  in  the  action.4 

*A  judgment  is  congruent  to  the  pleadings  when  it  grants  the  support  mentioned 
in  article  1100  of  this  law,  even  though  the  plaintiff  should  call  the  same  provisional 
or  temporary,  if  it  be  clearly  deduced  from  the  terms  and  bases  of  the  petition  that 
the  support  mentioned  in  said  article  is  referred  to,  and  not  the  maintenance  included 
in  articles  1609  et  seq. — Decision  of  December  24,  1888. 

2  A  judgment  which  grants  less  than  is  requested  is  not  incongruent. — Decision  of 
January  4,  1887. 

A  judgment  which,  in  revoking  a  ruling  appealed  from,  does  not  decide  as  to  the 
delivery  of  certain  estates,  etc.,  relating  to  the  estate  of  a  deceased  person,  which 
questions  had  been  decided  by  tho  lower  court  and  had  been  the  subject-matter  of 
the  express  petition  of  the  party  taking  the  appeal,  violates  the  provisions  of  this 
article. — Decision  of  January  14,  1884- 

3  Art.  360  of  the  law  of  civil  procedure  presupposes  as  a  fundamental  basis  for  the 
adjudication  of  losses  and  damages,  the  legal  proof  of  their  existence,  and,  therefore, 
a  chamber  which  condemns  the  defendant  to  pay  the  losses  and  damages  which  may 
have  been  caused  to  the  estates,  the  subject  of  the  litigation,  etc.,  violates  the  pro- 
visions of  this  article,  because  the  judgment  is  uncertain. — Decision  of  January  4, 1887, 

4  A  judgment  which  reserves  for  another  action  the  decision  of  one  of  the  questions 
raised  in  the  action,  violates  this  provision,  as  does  also  the  judgment  which  reserves 
to  the  plaintiff  the  right  which  may  pertain  to  him. — Decisions  of  July  9,  1885,  and 
December  18,  1868. 


LAW    OF    CIVIL    PROCEDURE.  73 

ART.  361.  Notwithstanding  the  provisions  of  the  foregoing  article, 
courts  and  judges,  when  they  are  to  base  their  judgment  exclusively 
upon  the  purported  commission  of  a  crime,  shall  suspend  the  decision 
of  the  action,  until  the  termination  of  the  criminal  proceedings,  if,  after 
hearing  the  department  of  public  prosecution,  they  should  consider 
the  institution  of  a  criminal  action  proper. 

The  order  of  suspension  may  be  appealed  from  for  review  and  for 
a  stay  of  proceedings.1 

ART.  362.  Neither  shall  judges  nor  courts  be  permitted  to  change  or 
modify  their  judgments  after  they  are  signed,  but  they  may  elucidate 
any  obscure  point  or  supply  any  omission  they  may  contain,  upon  a 
point  discussed  in  the  action.2 

These  elucidations  or  additions  may  be  made,  on  the  court's  own 
motion,  on  or  before  the  legal  working  day  following  the  publication 
of  the  judgment,  or,  at  the  instance  of  a  party,  on  or  before  the  day 
following  the  notification. 

In  the  latter  case,  the  judge  or  court  shall  decide  what  may  be  con- 
sidered proper,  on  or  before  the  day  following  the  presentation  of  the 
instrument  requesting  the  elucidation. 3 

ART.  363.  In  inferior  courts  the  judgments  shall  be  drafted  by  the 
judge  who  renders  the  same,  who,  after  entering  them  upon  the  record, 
shall  sign  and  read  them  in  open  court,  the  clerk  or  secretary  authen- 
ticating their  publication. 

ART.  364.  In  the  supreme  court  and  in  audiencias,  after  the  judg- 
ment has  been  prepared  by  the  ponente,  in  accordance  with  the  pro- 

1  In  order  to  consider  a  document  false,  it  is  necessary  that  a  clear  and  express 
declaration  of  its  falsity  be  made  in  the  judgment. — Decision  of  March  6,  1861. 

2  The  elucidation  of  a  judgment  rendered  by  a  court,  having  been  requested  because 
nothing  was  provided  therein  relating  to  the  reconvention  made  in  the  action,  the 
judge  supplemented  the  judgment  absolving  the  plaintiff  therefrom  and  allowing 
the  appeal  taken.     After  the  record  had  been  transmitted  to  the  higher  court  a  judg- 
ment was  rendered  confirming  that  appealed  from,  with  costs.     The  appellant  also 
demanded  an  elucidation  with  regard  to  the  reconvention,  but  the  chamber  declared 
that  an  elucidation  was  not  necessary,  because  the  elucidation  ordered  by  the  court 
had  not  been  the  object  of  the  appeal.     An  appeal  for  annullment  of  judgment  hav- 
ing been  taken,  the  supreme  court  decided  that  the  explanations  or  additions  which 
courts  make  in  their  judgments,  in  view  of  the  privilege  granted  them  by  article  362 
of  the  law  of  civil  procedure,  constitute  part  of  the  judgment  itself,  and  the  appeals 
taken  are  considered  to  embrace  said  additions  or  explanations,  for  which  reason  the 
adjudging  chamber  in  this  case  should  not  have  refused  to  render  judgment  on  the 
question  of  the  reconventiftn,  added  to  its  judgment  by  the  judge  of  first  instance, 
and  this  question  not  having  been  decided,  it  is  evident  that  article  358,  invoked  by 
the  appellant,  has  been  violated. — Decision  of  November  17,  1881 . 

3  The  correction  of  an  arithmetical  error  does  not  constitute  a  real  change  in  the 
judgment,  and  still  less  so,  when  it  was  requested  and  made  within  the  legal  period. — 
Decision  of  November  6,  1884- 

The  elucidations  or  additions  made  by  courts  in  judgments,  constitute  a  portion  of 
said  judgments,  and  appeals  taken  by  the  parties  are  understood  to  include  said 
additions  or  elucidations. — Decision  of  November  17,  1887. 


74  LAW   OF   CIVIL   PROCEDURE. 

visions  of  number  6  of  article  336,  and  after  having  been  approved  by 
the  chamber,  it  shall  be  drafted  on  official  stamped  paper  and  signed 
by  all  the  justices  who  may  have  rendered  it;  shall  be  read  in  open 
court  by  the  ponente,  and  in  his  absence,  by  the  presiding  judge  of 
the  chamber,  the  publication  thereof  being  authenticated  by  the  proper 
secretary  or  clerk  of  the  chamber. 

The  latter  shall  enter  in  the  record  a  literal  certified  copy  of  the 
judgment  and  of  the  fact  of  its  publication,  countersigned  or  viseed 
by  the  presiding  judge  of  the  chamber,  who  shall  recover  and  keep 
the  original  for  the  purpose  of  forming  the  register  of  judgments,  in 
the  manner  prescribed  in  the  regulations  or  in  special  provisions. 

ART.  365.  If,  after  an  action  has  been  decided  by  a  court,  one  of  the 
justices  who  voted  at  said  decision  should  become  unable  to  sign,  the 
one  who  presided  in  the  chamber  shall  do  so  for  him,  stating  the  name 
of  the  justice  for  whom  he  signs  and  placing  thereafter  the  words: 
Voted  in  chamber,  but  was  unable  to  sign. 

ART.  366.  Every  justice  taking  part  in  the  voting  for  a  judgment, 
shall  sign  the  decision  agreed  upon,  even  though  he  shall  have  dis- 
sented from  the  majority;  but  he  may,  in  such  case,  explain  his  vote, 
writing,  basing,  and  inserting  it  with  his  signature  at  the  bottom, 
within  the  twenty-four  hours  following,  in  the  book  of  reserved  votes 
(votos  reservados). 

ART.  367.  Private  reserved  votes  shall  not  be  inserted  in  the  certifi- 
cates of  the  judgments,  but  must  be  forwarded  to  the  supreme  court 
in  the  cases  prescribed,  and  always  when  the  record  is  transmitted  to 
the  same.  They  shall  be  made  public  when  an  appeal  for  annullment 
of  judgment  is  taken  and  allowed. 

SECTION  II. — Form  in  which  judicial  resolutions  shall  l)e  rendered. 

ART.  368.  The  resolutions  of  superior  and  inferior  courts  in  mat- 
ters of  a  judicial  character  shall  be  called — 

Providencias*  when  they  are  of  mere  practice. 

Autos  (rulings),  when  deciding  incidental  issues  or  points  which 
determine  the  disputed  personality  of  any  of  the  parties,  the  compe- 
tency of  the  inferior  or  superior  court,  the  allowance  or  disallowance 
of  a  challenge,  the  striking  out  of  a  complaint,  the  allowance  or  disal- 
lowance of  exceptions,  the  refusal  to  admit  a  counterclaim,  the  refusal 
to  admit  evidence  or  any  proceeding  therefor,  those  which  may  cause 
irreparable  injury  to  the  parties,  and  others  deciding  any  other  inci- 
dental matter,  when  it  is  not  prescribed  that  a  judgment  be  rendered 
thereon. 

Sentencias  (judgments),  when  finally  deciding  the  questions  at  issue 
in  an  action  in  one  instance,  or  in  an  extraordinary  remedy;  or  when 

is  has  been  translated  "  Orders"  or  "  Orders  of  mere  practice." 


LAW    OF    CIVIL   PROCEDURE.  75 

in  deciding  an  incidental  issue,  it  puts  an  end  to  the  main  issue  which 
was  the  object  of  the  action,  making  the  continuation  thereof  impos- 
sible, and  decisions  which  allow  or  refuse  to  allow  a  litigant  to  be 
heard,  after  he  has  been  declared  in  default. 

Final  judgments,  when,  b}^  their  nature  or  by  agreement  of  the  par- 
ties, there  should  be  no  ordinary  or  extraordinary  remedy  against 
them. 

Ejecutoria,  the  public  and  formal  instrument  in  which  a  final  judg- 
lent  is  entered  for  enforcement. 

ART.  369.  The  formula  for  orders  of  mere  practice  shall  be  limited 
to  the  order  of  the  judge  or  court,  without  any  bases  or  additions 
other  than  the  date  thereof  and  the  name  of  the  judge  or  chamber 
issuing  the  same. 

ART.  370.  The  formula  for  rulings  (autos)  shall  be  based  upon 
resultandos  and  consider  andos,  both  concrete  and  confined  to  the  par- 
ticular question  decided,  the  name  of  the  judge  or  court  deciding  the 
same,  and  the  place  and  date  upon  which  the  decision  was  made. 

ART.  371.  Final  judgments  shall  be  drafted  as  follows: 

1.  The  place,  date,  and  judge  or  court  rendering  the  same,  the 
names,  domicile,  and  profession  of  the  parties  litigant,  and  the  char- 
acter in  which  they  litigate,  the  names  of  their  attorneys  and  solicitors, 
and  the  object  of  the  action. 

There  shall  also  be  stated,  in  a  proper  case,  and  before  the  "  con- 
siderandos,"  the  name  of  the  justice ponente. 

2.  In  separate  paragraphs,  which  shall  begin  with  the  word  resultando 
there   shall  be  clearly  and   concisely  stated  the  contentions  of  the 
parties,  and  the  facts  that  have  been  properly  alleged  and  on  which 
the  same  are  based  and  which  are  connected  with  the  questions  to  be 
decided. 

In  the  last  resultando,  there  shall  be  stated  whether  the  provisions  of 
law  have  been  observed  in  the  course  of  the  proceedings,  and  stating, 
in  a  proper  case,  the  defects  or  omissions  that  may  have  been  committed. 

3.  The  points  of  law  alleged  by  the  parties  shall  also  be  considered 
in  separate  paragraphs,  beginning  with  the  word  consider ando,  giving 
the  reasons  and  legal  principles  which  are  considered  proper  for  the 
decision,  and  citing  the  laws  or  precedents  which  may  be  considered 
applicable  to  the  case. 

If,  during  the  course  of  thetaction,  anv  defects  or  omissions  should 
have  been  committed  which  should  be  corrected,  they  shaM  be  stated 
in  the  last  consider ando,  mentioning,  in  a  proper  case,  the  doctrine  to 
be  followed  for  a  correct  observance  and  application  of  this  law.1 

1  Against  the  violations  of  regulations  committed  during  the  course  of  judicial  pro- 
ceedings, the  ordinary  appeals  granted  by  the  laws  may  be  utilized  for  the  purpose 
of  repairing  the  injury  which  said  violation  may  cause  the  parties,  and  if  these 


76  LAW    OF    CIVIL    PROCEDURE. 

4.  Finally,  judgment  shall  be  pronounced  in  the  manner  prescribed 
in  articles  358  and  359,  and  such  statements  as  may  be  necessary  to 
correct  any  errors  which  may  have  been  committed  in  the  proceedings 
shall  be  set  forth. 

If  said  errors  should  deserve  disciplinaiy  correction,  it  may  be 
imposed  in  a  reserved  resolution,  when  this  is  considered  advisable.1 

AET.  372.  The  supreme  court  and  the  audiencias  shall  see  that  the 
provisions  of  the  preceding  article  are  complied  with,  and  shall,  there- 
fore, duly  admonish  their  subordinate  courts  and  judges  when  they 
have  not  conformed  to  the  rules  prescribed  therein,  and  shall  impose 
upon  them  such  other  disciplinary  corrections  which  may  be  proper. 

ART.  373.  The  ejecutorias  shall  be  headed  in  the  name  of  the  King. 

The  final  judgments  shall  be  inserted  therein,  as  well  as  the  previous 
ones,  if  the  latter  form  a  complement  to  the  former. 

If  the  transcript  is  issued  at  the  instance  of  a  party,  for  the  pro- 
tection of  his  interests,  there  shall  also  be  inserted  such  documents, 
instruments,  and  proceedings  which  he  may  designate,  and  at  his  cost. 

ART.  374.  Orders  of  mere  practice,  rulings,  and  judgments  must  be 
issued  within  the  period  of  time  prescribed  by  law  for  each. 

The  judge  or  court  who  should  fail  to  do  so,  shall  be  disciplinary 
corrected,  unless  there  should  be  good  cause,  which  shall  be  entered 
in  the  record. 

TITLE  IX. 

REMEDIES  AGAINST  JUDICIAL  RESOLUTIONS  AND  THEIR  EFFECTS. 

SECTION  I. — Remedies  against  resolutions  of  judges  of  first  instance. 
ART.  375.  Against  orders  of  mere  practice  issued  by  judges  of  first 

remedies  should  not  have  been  used,  acts  consented  to  and  carried  out  can  not  be 
returned  to. — Decision  of  May  7,  1888. 

The  explicit  precepts  of  this  article  are  violated  when  no  law  or  doctrine  whatso- 
ever is  cited  in  the  judgment  in  support  of  the  declaration  made  therein. — Decision 
of April  14,  1860. 

The  violation  of  this  article  can  never  give  rise  to  an  appeal  for  annullment  of 
judgment. — Decisions  of  January  4,  September  29,  and  October  19,  1866,  and  June  30, 
1865. 

1  The  decision  of  questions  of  fact  is  of  the  exclusive  jurisdiction  of  the  adjudging 
chamber. — Decisions  of  June  16  and  30,  1876;  January  18,  1883,  and  May  21,  1883. 

An  adjudging  chamber  does  not  violate  any  laws  by  considering  and  combining 
various  elements,  in  order  to  deduce  its  true  belief. — Decision  of  February  19,  1879. 

According  to  jurisprudence  of  the  supreme  court,  the  taxation  of  costs  in  the  first 
instance  is  of  the  exclusive  competency  of  the  superior  courts,  who  are  to  consider 
the  good  or  bad  faith  of  the  litigants. — Decision  of  October  7,  1879. 

The  decision  in  the  second  instance  does  not  have  to  be  confined  to  a  declaration 
in  the  last  resukando  as  to  whether  the  legal  prescriptions  have  been  observed  or  not 
in  the  course  of  the  proceedings  of  the  appeal,  but  must  contain  a  similar  declaration 
with  regard  to  the  first  instance. 


' 


LAW    OF    CIVIL    PROCEDURE.  77 

instance  there  shall  be  no  other  remedy  but  an  application  for  a 
rehearing,  without  prejudice  to  which  the  order  shall  be  executed. 

In  order  that  this  application  be  allowed,  it  must  be  made  within 
the  third  da}%  and  the  provision  of  this  law  which  has  been  violated 
must  be  cited. 

If  these  two  requisites  have  not  been  complied  with,  the  judge 
hall  disallow  the  application  eo  instanti  and  without  further  remedy.1 

ART.  376.  A  rehearing  of  other  orders  and  rulings  made  by  a  judge 
of  first  instance  may  also  be  requested  within  five  days,  excepting 
those  mentioned  in  article  381. 

ART.  377.  When  an  application  for  a  rehearing  has  been  presented 
in  the  proper  manner  and  within  the  proper  time,  a  copy  thereof  shall 
be  delivered  to  the  adverse  party,  who  may  object  to  the  application, 
if  he  should  care  to  do  so,  within  the  three  days  following. 

When  there  are  several  colitigant  parties,  said  period  shall  be 
common  for  all  of  them. 

ART.  378.  After  the  period  above  mentioned  has  elapsed,  whether 
or  not  written  objections  have  been  filed,  the  judge  shall,  on  or  before 
the  third  day  following,  decide  what  he  may  consider  proper. 

ART.  379.  From  a  ruling  deciding  on  an  application  for  a  rehearing 
or  the  orders  and  rulings  referred  to  in  article  376,  an  appeal  may  be 
taken  on  or  before  the  third  day  thereafter. 

ART.  380.  When  the  .rehearing  refers  only  to  the  orders  of  mere 
practice,  mentioned  in  article  375,  there  shall  be  no  remedy  whatsoever 
against  a  ruling  deciding  the  same,  except  the  right  to  institute  an 
action  for  liability,  and  the  right  to  request  in  the  second  instance, 
that  the  error  be  cured  when  proper. 

ART.  381.  Final  judgments  in  all  matters  and  rulings  deciding 
dilatory  exceptions  and  incidental  issues,  may  be  appealed  from  within 
five  days.2 

ART.  382.  The  appeals  may  be  allowed  for  a  review  only,  or  for  a 
review  and  stay  of  proceedings  also. 

They  shall  be  allowed  for  review  only  in  all  cases  in  which  it  is  not 

1  Orders  of  mere  practice  (providencias)  are  those  issued  for  the  purpose  of  con- 
ducting the  action  in  the  manner  prescribed  by  law. 

An  order  requiring  that  the  record  be  delivered  to  the  relator  for  the  preparation 
of  a  brief  is  not  an  order  of  mere  practice,  when  a  question  is  involved  in  which  the 
appeal  is  not  interposed  at  the  proper  time. — Decision  of  July  9,  1887. 

2  No  appeal  lies  to  the  audiencia  of  the  territory  from  the  orders  and  other  resolu- 
tions rendered  by  judges  of  first  instance  in  actions  brought  before  them  on  appeal 
from  municipal  courts  of  their  district  and  which  are  of  the  competency  of  the  lat- 
ter in  first  instance,  because  the  law  does  not  authorize  a  third  degree  of  jurisdic- 
tion in  any  kind  of  actions. — Decision  of  September  13,  1884. 

When  an  appeal  is  interposed  in  due  time  without  the  signature  of  an  attorney, 
although  it  can  not  be  passed  upon  until  the  defect  is  cured,  the  lapse  of  the  period 
of  time  is  interrupted,  and  after  the  defect  is  cured  said  appeal  must  be  admitted. — 
Decision  of  December  26,  1883. 


78  LAW    OF    CIVIL    PKOCEDUKE. 

prescribed  that  they  be  allowed  without  limitation  or  for  a  review  and 
stay  of  proceedings  also.1 

ART.  383.  In  addition  to  the  cases  expressly  mentioned  in  the  law, 
the  following  appeals  shall  be  allowed  for  review  and  for  a  stay  of 
proceedings : 

1.  Appeals  from  definite  judgments  in  all  kinds  of  actions,  when  not 
otherwise  provided  by  law. 

2.  Appeals  from  rulings  and  orders  which  put  an  end  to  an  action, 
rendering  its  continuation  impossible. 

3.  Appeals  from  rulings  and  orders  which  cause  definite  and  irrep- 
arable injury.2 

ART.  384.  In  the  last  case  of  the  foregoing  article,  if  the  judge 
allows  the  appeal  for  a  review  only,  because  he  does  not  consider  the 
injury  irreparable,  and  the  appellant  insists  upon  the  contrary,  on  or 
before  the  third  day  thereafter,  the  appeal  shall  be  allowed  for  a 
review  as  well  as  for  a  stay  of  the  proceedings,  provided  that  the  appel- 
lant, within  a  period  not  to  exceed  six  days,  furnishes  a  bond  to  the 
satisfaction  of  the  judge  to  indemnify  the  opposite  party  or  parties, 
in  a  proper  case,  for  all  costs  or  damages  they  may  incur  or  suffer. 

If  the  audiencia  shall  affirm  the  ruling  appealed  from,  it  shall  con- 
demn the  appellant  to  the  payment  of  said  indemnities,  and  shall  mod- 
erately fix  the  amount  of  said  losses  and  damages. 

The  indemnity  therefor  shall,  not  be  less  than  250  nor  more  than 
2,500  pesetas  for  each  of  the  opposite  parties,  in  addition  to  the  costs. 

ART.  385.  If  an  appeal  is  taken  in  time  and  in  proper  form,  the 
judge  shall  allow  it  without  any  further  proceeding,  if  proper,  stating 
whether  it  is  allowed  for  a  review  of  proceedings  only,  or  for  a  review 
and  stay  of  the  proceedings. 

ART.  386.  If  the  appeal  has  been  allowed  for  a  review  and  stay  of 
proceedings,  the  judge  shall  forward  the  original  record  to  the  supe- 
rior court  within  six  days,  under  his  liability  and  at  the  cost  of  the  appel- 
lant, first  citing  and  summoning  the  solicitors  of  the  parties  to  appear 
before  said  court  within  the  period  of  twenty  days. 

ART.  387.  In  the  case  of  the  foregoing  article,  the  execution  of  the 
judgment  or  ruling  appealed  from  shall  be  suspended  until  the  supe- 
rior court  renders  a  decision  thereupon.3 

ART.  388.  The  jurisdiction  of  the  judge  over  the  principal  issue  and 
over  incidental  issues  which  may  arise,  shall  also  be  suspended  from  the 

1 A  ruling  allowing  an  appeal  for  review  only  is  not  final  for  the  purposes  of  an 
appeal  for  annulment  of  judgment. — Decision  of  July  7,  1886. 

2  An  appeal  for  annulment  of  judgment  does  not  lie  when  based  on  a  violation  of 
this  article,  because  the  latter  relates  to  mere  practice  only. — Decision  of  June  8, 1885. 

3  If  a  decision  is  appealed  from,  even  though  it  be  in  one  of  its  issues  only,  it  does 
not  acquire  the  character  of  a  res  judicata  in  any  of  them. — Decision  of  January  21, 
1876. 


LAW    OF    CIVIL    PROCEDURE.  79 

moment  he  allows  an  appeal  therefrom  for  a  review  and  for  a  stay  of 
proceedings.  * 

ART.  389.  The  following  are  excepted  from  the  provisions  of  the 
foregoing  article,  and  the  judge  may  continue  exercising  jurisdiction 
over  the  same: 

1.  Issues  heard  and  determined  in   a   separate   record,  instituted 
before  the  appeal  was  allowed. 

2.  All  matters  relating  to  the  administration,  custody,  and  care  of 
property  attached  or  under  judicial  control,  provided  that  the  appeal 
does  not  involve  one  of  these  points. 

3.  Matters  relating  to  the  security  and  custody  of  persons. 

ART.  390.  The  execution  of  the  judgment,  ruling,  or  order  appealed 
from  shall  not  be  suspended,  when  the  appeal  has  been  allowed  for  a 
review  of  the  proceedings  only. 

In  such  case,  if  the  appeal  should  be  from  a  final  judgment,  an  authen- 
ticated statement  of  all  that  is  necessary  for  its  execution  shall  remain 
in  the  court,  the  record  being  forwarded  to  the  appellate  court  in  the 
form  and  manner  prescribed  in  article  386. 

If  the  appeal  should  be  from  a  ruling  or  order,  the  appellant  shall 
be  furnished,  at  his  cost,  a  certified  copy  of  the  contents  of  the  record, 
with  such  additions  as  may  be  made  by  the  colitigant  and  those  which 
the  judge  may  consider  necessary  to  enable  him  to  apply  to  the 
audiencia. 

The  appellant  must  request  said  copy  within  five  days,  stating  the 
details  it  should  contain.  Upon  the  expiration  of  this  period  without 
having  requested  it,  the  said  statement  or  copy  shall  be  denied  him  and 
the  decision  appealed  from  shall  be  considered  final.2 

ART.  391.  At  the  end  of  the  statement  or  copy  mentioned  in  the 
last  two  paragraphs  of  the  foregoing  article,  the  citation  shall  be 
entered,  summoning  the  parties  to  appear  before  the  appellate  court 
within  the  period  of  fifteen  days,  and  the  fact  of  service  thereof  upon 
the  appellant's  solicitor  shall  be  therein  stated. 

ART.  392.  Within  the  fifteen  days  following  the  date  of  the  deliv- 

lEy  virtue  of  the  provisions  contained  in  this  article,  judges  are  not  permitted,  after 
allowing  an  appeal  for  a  stay  of  proceedings  and  for  a  review,  to  change  the  state  of 
the  records  'nor  that  of  the  evidence  taken,  nor  to  order,  therefore,  that  documents 
be  removed  and  delivered  to  the  parties  who  presented  the  same,  and  certified  copies 
put  in  their  place. — Decision  of  September  13,  1884, 

2  The  ruling  from  which  an  appeal  for  review  wTas  allowed  shall  become  final,  if  the 
appellant  does  not  request\he  statement  within  the  period  of  five  days. — Decision  of 
January  16,  1885. 

Although  the  signature  of  an  attorney  is  necessary  to  the  instrument  requesting 
said  statement,  if  the  first  application  did  not  contain  it,  the  defect  must  be  cor- 
rected; but  if  the  application  is  made  in  due  time  it  interrupts  the  lapse  of  the  period 
and  the  appeal  must  be  allowed.—  Decision  of  December  26,  1883. 


80  LAW    OF    CIVIL    PROCEDURE. 

ery  of  the  statement,  the  appellant  must  make  use  thereof  and  perfect 
his  appeal  before  the  appellate  court.1 

ART.  393.  When  any  appeal  has  been  allowed  for  a  review  only,  the 
appellant  may  request  the  audiencia  to  declare  it  allowed  for  a  stay  of 
proceedings  also,  citing  the  legal  provision  upon  which  said  request  is 
based. 

This  application  must  be  made  within  the  time  fixed  for  his  appear- 
ance, if  the  appeal  were  from  a  final  judgment,  and  otherwise  at  the 
time  when  the  authenticated  statement  is  presented  for  the  purpose  of 
perfecting  the  appeal. 

ART.  394.  If,  at  the  time  said  request  is  made  by  the  appellant,  the 
respondent  has  entered  his  appearance  before  the  appellate  court,  a 
copy  of  said  instrument  shall  be  served  upon  him  in  order  that  he  may 
object  thereto,  if  he  so  desires,  within  the  three  days  following,  upon 
the  expiration  of  which,  the  audiencia,  without  further  proceedings 
and  without  remedy,  shall  render  the  decision  it  believes  conformable 
to  law. 

ART.  395.  If  the  audiencia  shall  deny  the  application  above  men- 
tioned, the  costs  of  the  issue  shall  be  taxed  against  the  appellant,  and 
the  appeal  shall  take  the  proper  course. 

If  the  appeal  is  admitted  for  a  review  and  stay  of  proceedings,  an 
order  shall  be  made  requiring  the  judge  of  first  instance  to  suspend 
the  execution  of  the  judgment  or  forward  the  original  record,  as  the 
case  may  be,  the  parties  being  notified  thereof. 

ART.  396.  The  respondent  may  also  request  the  audiencia,  within 
the  period  set  for  the  appearance,  that  the  appeal  which  was  allowed 
by  the  lower  court  for  a  review  and  for  a  stay  of  proceedings,  be 
declared  as  allowed  for  a  review  only,  citing  the  legal  provisions  on 
which  he  bases  his  request. 

This  application  shall  follow  the  same  course  as  prescribed  in  article 
394.  If  the  appellate  court  should  grant  the  same,  an  order  shall  be 
issued  requiring  the  judge  of  first  instance  to  execute  the  judgment 
appealed  from,  and  attaching  a  certified  copy  of  the  latter  to  said  order. 

If  the  matter  on  appeal  is  a  ruling  or  order,  requiring  that  the 
record  remain  in  the  lower  court  for  its  continuation,  it  shall  be 
returned  to  the  same,  a  certified  copy  of  all  that  is  necessary  for  the 
determination  of  the  appeal  being  retained. 

ART.  397.  Against  the  rulings  or  orders  of  judges  of  first  instance 
disallowing  an  appeal,  the  appellant  may  seek  the  remedy  of  com- 
plaint before  the  respective  audiencia. 

This  remedy  must  be  prepared  by  requesting  within  five  days  there- 

1  The  period  within  which  to  perfect  an  appeal  can  not  be  extended  on  account  of 
its  nature. — Decision  of  December  5,  1861. 


LAW    OF    CIVIL    PROCEDURE.  81 

after,  a  rehearing  of  the  subject-matter  of  the  ruling  or  order,  and  if 
it  be  denied,  a  certified  copy  of  both  resolutions. 

If  the  judge  should  deny  the  rehearing,  he  shall  order  at  the  same 
time  that,  within  the  six  days  following,  said  certificate  be  given  to  the 
party  interested,  the  date  of  the  delivery  being  entered  by  the  record- 
ing clerk  at  the  end  thereof. 

ART.  398.  Within  the  fifteen  days  following  the  delivery  of  the 
certificate,  the  party  who  requested  the  same  shall  be  obliged  to  make 
use  thereof,  filing  his  complaint  in  the  audiencia. 

ART.  399.  The  said  complaint,  together  with  the  copy,  having  been 
presented  in  time,  the  audiencia  shall  cause  an  order  to  be  issued 
requiring  the  judge  of  first  instance  to  make  a  report  with  the  reasons 
for  his  action,  and  after  this  report  has  been  received,  the  audiencia 
shall  decide  what  it  may  deem  just,  without  further  proceedings. 

If  the  disallowance  of  the  appeal  be  considered  proper,  it  shall  cause 
the  judge  to  be  informed  thereof  by  means  of  letters  mandatory,  in 
order  that  it  may  appear  in  the  record. 

And  if  it  deems  that  the  appeal  should  have  been  allowed,  it  shall 
so  declare,  stating  whether  it  is  to  be  considered  as  allowed  for  a 
review  only  or  also  for  a  stay  of  proceedings,  and  shall  order  the 
judge,  according  to  the  cases,  to  transmit  the  original  record,  as  pre- 
scribed in  article  386,  or  that  the  appellant  be  furnished  the  certified 
copy  referred  to  in  articles  390,  391,  and  392,  in  the  form  and  for  the 
purposes  prescribed  therein. 

SECTION  II. — Remedies  against  resolutions  of  audiencias. 

ART.  400.  Against  orders  of  mere  practice  made  by  audiencias,  there 
shall  be  no  remedy  whatsoever,  except  an  action  for  liability. 

ART.  401.  Against  judgments  or  rulings  deciding  incidental  issues 
which  are  raised  during  the  course  of  the  second  instance,  there  shall 
be  a  remedy  of  complaint  to  the  same  chamber  within  five  days.1 

The  practice  for  this  remedy  shall  be  the  same  as  is  provided  for 
rehearings  in  articles  377  and  378,  the  decision  being  rendered  after  a 
report  from  the  justice  ponente. 

ART.  402.  Against  final  judgments  and  rulings  which  put  an  end  to 
an  action,  rendered  by  audiencias  at  second  instance,  there  shall  be  no 
remedy  but  an  appeal  for  annulment  of  judgment,  in  the  cases  and  in 
the  manner  prescribed  in  title  21  of  book  2  of  this  law. 

1  That  is  to  say,  in  issues  occurring  and  raised  during  the  second  instance. — 
Dcnxion  of  October  6,  1862. 

This  does  not  take  place  when  there  is  an  express  provision  of  law  in  contraven- 
tion thereof,  as  is  the  case  in  article  868  of  this  law. 

And  therefore  a  request  should  not  be  made  to  have  the  record  transferred  to 
another  chamber,  as  it  would  be  illegal. — Decision  of  March  2,  1863. 
5901 6 


82  LAW    OF    CIVIL    PROCEDURE. 

Against  other  decisions  which  they  render  on  appeal,  there  shall  be 
no  remedy  whatsoever,  except  the  action  for  liability.1 

ART.  403.  An  appeal  for  annulment  of  judgment  shall  also  lie  from 
the  final  judgments  rendered  by  audiencias  in  matters  submitted  to 
the  same  in  original  and  only  instance,  and  from  rulings  deciding  the 
remedies  of  complaint  established  in  article  401,  when  they  have  the 
character  of  final  judgments. 

SECTION  III. — Remedies  against  decisions  of  the  supreme  court. 

ART.  404.  The  provisions  of  articles  400  and  401  shall  be  applicable 
to  decisions  of  a  similar  character  rendered  by  the  supreme  court. 

ART.  405.  There  shall  be  no  remedy  against  decisions  granting, 
denying,  allowing,  or  disallowing  appeals  for  annullment  of  judgment, 
except  that  of  revision  or  of  criminal  liability,  in  a  proper  case. 

SECTION  IV. — Provisions  common  to  superior  and  inferior  courts. 

ART.  406.  In  cases  in  which  an  elucidation  of  a  judgment  is  requested, 
in  accordance  with  the  provisions  of  article  362,  the  period  within 
which  to  interpose  the  remedy  which  may  be  proper  against  the  same 
judgment,  shall  be  counted  from  the  date  of  the  notification  of  the 
ruling  granting  or  denying  the  elucidation. 

ART.  407.  After  the  periods  fixed  for  the  preparation,  interposition, 
or  perfection  of  a  remedy,  without  seeking  the  benefit  thereof,  the 
subject-matter  of  the  judicial  decision  shall  be  considered  res  judicata 
without  the  necessity  of  an  express  declaration  therefor. 

ART.  408.  A  litigant  who  should  have  taken  an  appeal  or  interposed 
any  other  remedy,  may  abandon  the  same  before  the  judge  or  court 
rendering  the  decision  appealed  from,  if  he  does  so  before  the  record 
has  been  forwarded  to  the  appellate  court,  or  before  a  certificate  or 
authenticated  copy  has  been  delivered  to  him  for  the  purpose  of  tak- 
ing or  perfecting  the  appeal. 

He  may  also  do  so  after  having  received  this  document,  if  he  returns 

1  In  the  law  of  civil  procedure  an  appeal  for  annulment  of  judgment  to  the  cham- 
ber which  rendered  the  final  judgment  is  unknown,  even  though  it  was  rendered  on 
false  testimony. — Decision  of  March  22,  1866. 

Although  a  judgment  rendered  on  false  testimony  or  documents  may  be  revoked 
and  rescinded,  it  is  indispensable  that  the  falsity  be  proved  and  that  the  decision 
was  rendered  by  virtue  thereof  and  not  for  any  other  reasons,  in  accordance  with 
the  provisions  of  laws  1  and  2,  title  XXVI,  Partida  3,  in  accordance  with  the  Eoman 
laws,  Digest  33,  De  re  judicata,  3rd  and  4th  Code,  Si  ex  falsis  instrumentis  vel  testimonils 
judicatum  sit. — Decisions  of  February  9,  1865,  and  October  1,  1866. 

At  the  present  time  if  the  judgment  was  rendered  on  false  documents  or  testimony, 
there  lies  an  appeal  for  revision,  in  accordance  with  article  1794  of  the  law  in  force. 

Although  the  final  judgments  of  courts  do  not  generally  affect  those  who  have  not 
been  parties  to  the  litigation,  there  are  some  exceptions,  as  is  the  case  when  the 
nullity  of  a  will  is  involved,  because  after  it  has  been  declared  null  by  a  court  it  can 
not  be  valid  for  a  third  person,  even  though  he  should  not  have  been  a  party  to  the 
litigation. — Decision  of  March  28,  1859. 


LAW    OF    CIVIL    PROCEDURE.  83 

it  in  its  original  state  as  a  proof  that  he  has  not  used  the  same  before 
tht4  appellate  court. 

In  other  cases  the  abandonment  must  be  made  before  the  appellate 
court.1 

ART.  409.  In  order  to  consider  the  abandonment  made,  it  shall  be 
necessary  that  the  solicitor  have  or  present  a  special  power  therefor 
or  that  the  person  interested  ratines  his  action  in  writing. 

When  the  abandonment  is  considered  as  having  been  made,  the  costs 
incurred  by  the  taking  of  the  appeal  shall  be  taxed  against  the  party 
making  it.2 

TITLE  X. 

EXTINCTION    OF    ACTIONS. 

ART.  410.  All  actions  shall  be  considered  abandoned  and  be  extin- 
guished by  law,  even  if  minors  or  incapacitated  persons  are  parties 
thereto,  if,  after  having  been  instituted,  they  are  not  prosecuted — 

Within  four  years  when  the  cause  is  at  first  instance. 

Within  two  if  it  is  at  second  instance. 

Within  one  year  if  on  appeal  for  annulment  of  judgment. 

These  periods  of  time  shall  be  counted  from  the  time  the  last  notice 
was  served  on  the  parties.3 

ART.  411.  No  action  shall  be  extinguished  within  the  periods  men- 
tioned in  the  foregoing  article  when  the  want  of  prosecution  was  due 
to  force  majeure  or  to  any  other  cause  independent  of  the  will  of  the 
litigants. 

In  such  cases  said  periods  shall  be  counted  from  the  time  the  litigants 
could  have  begun  the  prosecution.4 

^ee  articles  845  to  848  and  1787. 

2  An  order  declaring  an  appeal  abandoned  is  final. — Decision  of  December  20, 1862. 
If  the  appellant  does  not  appear  before  the  appellate  court  within  the  time  set  for 

his  appearance,  it  is  not  necessary  that  the  parties  be  cited  to  perfect  the  appeal, 
because  the  first  time  that  the  respondent  requests  judgment  in  default  the  remedy 
is  declared  abandoned. — Decisions  of  September  20,  1865,  and  April  24,  1869. 

An  appeal  is  not  considered  abandoned  until  the  court  so  declares. — Decision  of 
April  6,  1866. 

3  A  declaration  of  abandonment  is  not  proper  when  the  delay  in  the  proceedings 
is  due  to  force  majeure,  an  exception  which  favors  the  litigant  whose  solicitor  discon- 
tinues in  the  exercise  of  his  duties,  without  notifying  the  person  interested  in  due 
form. — Decision  of  June  3,  1891. 

The  law  does  not  require  for  these  cases  the  previous  citation  which  is  required  in 
rendering  judgments  or  rulings  which  close  an  action,  because  the  intention  thereof 
is  to  officially  close  the  causes. — Decision  of  April  29,  1885. 

The  extinction  of  an  action  is  applicable  to  causes  prosecuted  according  to  the  old 
law  of  procedure,  with  the  only  difference  with  regard  to  causes  suspended  upon  the 
promulgation  of  this  law  of  the  provisions  of  article  419;  that  is  to  say,  the  periods 
to  be  counted  from  the  day  on  which  the  law  went  into  effect. — Decision  of  December 
7,  1885. 

4  The  loss  of  the  record  roll  of  the  second  instance  does  not  constitute  a  cause  of 
force  majeure  referred  to  in  this  article. — Decision  of  March  9,  1887. 


84  LAW    OF    CIVIL   PROCEDURE. 

AKT.  412.  It  shall  be  the  duty  of  the  clerk  or  recording  clerk  in 
whose  possession  the  record  maybe,  to  inform  the  proper  judge  or 
court  when  the  periods  fixed  in  article  410  have  elapsed,  in  order  that 
the  proper  order  may  be  officially  issued. 

ART.  413.  If  the  record  be  at  first  instance,  and  it  should  appear 
that  the  four  years  have  elapsed  without  any  of  the  parties  having 
taken  up  the  prosecution  of  the  action  when  they  were  able  to  do  so, 
the  action  shall  be  considered  as  abandoned,  and  the  judge  shall  order 
the  record  filed  in  the  archives,  without  further  proceedings. 

In  such  case  the  costs  shall  be  taxed  against  the  parties  at  whose 
instance  they  were  incurred. 

ART.  414.  When  the  record  is  at  second  instance,  or  on  appeal  for 
annulment  of  judgment,  after  the  respective  periods  have  elapsed, 
the  appeal  shall  be  considered  as  abandoned,  and  the  judgment 
appealed  from  or  complained  against  shall  be  considered  final,  the 
record  being  ordered  returned  to  the  lower  judge  or  court,  with 
a  certificate  of  the  ruling  containing  said  decision,  for  the  proper 
purposes. 

In  such  cases  the  costs  of  the  appeal  shall  be  taxed  against  the 
appellant  or  petitioner. 

ART.  415.  The  plaintiff,  appellant,  or  petitioner  may  request  a 
rehearing  or  review  of  the  rulings  referred  to  in  the  two  foregoing 
articles  within  five  days,  if  he  should  believe  that  the  court  has  erred 
in  its  declaration  that  the  legal  period  has  expired,  by  virtue  of  which 
the  action  has  been  considered  extinguished,  or  if  the  case  is  included 
in  the  provisions  of  article  411. 

The  request  can  not  be  based  on  any  other  reason. 

ART.  416.  This  remedy  shall  take  the  course  prescribed  in  articles 
377  and  378,  the  person  requesting  the  rehearing  being  permitted  to 
present  his  evidence  of  the  facts  upon  which  his  request  is  based 
within  a  period  not  to  exceed  ten  days. 

ART.  417.  The  provisions  Contained  in  the  foregoing  articles  shall 
not  be  applicable  to  proceedings  for  the  execution  of  final  judgments. 
These  proceedings  may  be  instituted  at  any  time  before  the  execution 
of  the  judgment,  even  if  the  periods  mentioned  in  article  410  have 
expired. 

ART.  418.  The  extinction  of  the  first  instance  does  not  extinguish 
the  cause  of  action,  which  may  be  prosecuted  again  in  the  proper  action 
and  a  new  action  instituted,  if  said  cause  of  action  should  not  have 
become  prescribed  in  accordance  with  law. l 

ART.  419.  In  actions  which,  upon  the  promulgation  of  this  law,  are 

1  See  article  944  of  the  Code  of  Commerce  with  regard  to  the  interruption  of  the 
prescription  of  causes  of  action  arising  from  commercial  contracts,  and  articles  1946 
and  1973  of  the  Civil  Code  relating  to  cases  in  which  an  interruption  will  not  be 
considered,  etc. 


LAW    OF    CIVIL    PROCEDURE.  85 

pending  in  any  instance,  the  period  fixed  in  article  410  shall  be  counted 
from  the  day  on  which,  after  their  publication,  said  law  goes  into 
operation. 

If  said  actions  are  filed,  the  pending  instance  shall  be  considered  as 
legally  extinguished  without  the  necessity  of  a  special  declaration, 
unless  the  prosecution  thereof  is  proceeded  with  within  the  period 
aforementioned. 


TITLE  XI. 

TAXATION  OF  COSTS. 


ART.  420.  When  there  is  an  adjudication  of  costs,  as  soon  as  it 
becomes  final,  payment  shall  be  enforced  by  compulsory  process,  after 
their  taxation,  if  the  party  adjudged  to  pay  the  same  should  not  have 
done  so  before  the  opposite  party  requests  said  taxation.1 

ART.  421.  The  taxation  of  costs  shall  be  made  in  the  superior  and 
inferior  courts  by  the  clerk  of  the  chamber  or  recording  clerk  who 
may  have  taken  part  in  the  action,  including  therein  all  the  costs 
comprised  in  the  adjudication,  and  incurred  up  to  the  time  of  the 
taxation. 

In  the  superior  or  inferior  courts  having  assessors  of  costs  by  virtue 
of  an  alienable  office,  and  until  said  offices  revert  to  the  State,  said 
assessors  shall  make  the  taxation  in  accordance  with  the  provisions  of 
this  law. 

ART.  422.  Fees  appertaining  to  officials  subject  to  schedules,  shall  be 
regulated  according  thereto. 

The  fees  of  attorneys,  experts,  and  other  officials  not  subject  to  a 
schedule,  shall  be  fixed  by  the  persons  interested  in  a  detailed  and 
signed  statement,  which  they  shall  personally  present  at  the  clerk's 

1  The  costs  of  the  second  instance  can  not  be  taxed  against  a  litigant  who  obtained 
a  favorable  judgment  at  first  instance,  and  is  forced  to  appear  before  the  higher 
court  by  reason  of  the  appeal  taken  by  the  opposite  party. — Decision  of  April  14, 1882 

The  costs  can  in  no  case  be  taxed  against  the  respondent. — Decision  of  April  25, 
1887. 

The  adjudging  court  is  to  consider  the  good  or  bad  faith  of  the  litigants,  for  the 
purpose  of  taxing  the  costs  at  first  instance. — Decisions  of  April  14,  1882,  October  25 
and  December  15,  1883;  May  21,  1884,  May  20  and^December  16,  1885,  March  31  and 
Mnij  22,  1886. 

After  the  adjudication  upon  costs,  they  shall  be  recovered  by  compulsory  process, 
without  permitting  foreign  questions  to  be  raised,  which  must  be  decided  in  a  sepa- 
rate proceeding. — Decision  of  January  17,  1883. 

When  the  plaintiff  is  granted  part  of  what  he  desires,  the  rest  being  denied  him, 
he  may  be  adjudged  to  pay  the  costs — Decision  of  February  13,  1886. 

When  the  decision  of  the  lower  court  is  affirmed  in  all  its  points,  the  appellant  is 
obliged  to  pay  the  costs.— Decision  of  September  30,  1886. 

The  costs  of  the  second  instance  can  not  be  imposed  in  any  case  upon  the  respond- 
ent who  has  appeared  to  support  the  judgment  he  obtained  in  the  lower  court. — 
Decision  of  April  25,  1887. 


86  LAW    OF    CIVIL    PROCEDURE. 

office,  without  the  necessity  of  a  letter  of  transmittal,  or  through  the 
solicitor  of  the  party  whom  they  defended,  after  the  judgment  or  ruling 
in  which  said  costs  were  imposed  becomes  final.  The  recording  clerk 
shall  include  in  the  taxation  the  amount  appearing  in  the  statement. 

ART.  423.  Fees  for  instruments,  proceedings,  or  other  acts  which 
are  useless,  superfluous,  or  not  authorized  by  law,  and  the  items  of 
statements  which  are  not  mentioned  in  detail,  or  which  relate  to  fees 
not  incurred  in  the  action,  shall  not  be  included  in  the  taxation  of  costs. 

Neither  shall  there  be  included  in  said  taxation  the  costs  of  proceed- 
ings or  of  issues  which  had  been  expressly  adjudicated  against  the 
party  who  obtained  the  final  judgment,  such  costs  being  at  all  times  on 
account  of  said  party.1 

ART.  424.  After  the  taxation  of  costs  has  been  made  and  presented, 
no  other  entry  shall  be  included  or  added  thereto,  the  person  inter- 
ested reserving  the  right  to  demand  payment  therefor,  if.  he  should  so 
desire,  of  the  person  and  in  the  manner  he  may  see  fit. 

ART.  425.  The  taxation  of  costs  shall  be  submitted  to  each  of  the 
parties  for  examination,  for  a  period  of  three  days,  the  party  who  has 
been  adjudged  to  pay  the  same  making  the  first  examination. 

ART.  426.  If  the  fees  of  the  attorneys  should  be  objected  to  as 
being  excessive,  the  attorney  against  whom  the  complaint  is  directed 
shall  be  heard  for  a  period  of  two  days,  and  the  record  shall  then  be 
transmitted  to  the  association  of  attorneys,  and  where  there  is  none, 
to  two  attorneys  appointed  by  the  judge  or  chamber,  for  a  report 
thereon.  Should  there  not  be  two  attorneys  at  the  place  where  the 
action  was  heard,  or  all  of  them  should  be  interested  in  the  question, 
the  data  shall  be  transmitted  to  the  nearest  association  or  college  of 
attorneys,  through  the  proper  judge  of  first  instance. 

The  same  action  shall  be  taken  when  fees  of  experts  or  other  officials 
not  subject  to  a  schedule  are  objected  to;  in  such  case,  the  report  of  the 
academy,  college,  or  guild  to  which  they  belong  shall  be  heard,  and  if 
there  be  none,  that  of  two  persons  of  the  same  profession.  Should 
there  not  be  any  in  the  place,  the  neighboring  places  may  be  resorted  to. 

ART.  427.  The  chamber  or  the  judge  in  a  proper  case,  in  view  of 
the  statements  of  the  parties  or  persons  interested  and  the  reports 
received  with  regard  to  the  fees,  shall  approve  the  taxation  or  shall 
order  the  changes  made  therein  which  they  may  consider  just  and  at 
the  cost  of  the  proper  party,  without  further  remedy.2 

ART.  428.  When  the  taxation  of  costs  is  objected  to,  because  fees  or 
charges  have  been  included  therein,  the  payment  of  which  does  not 
appertain  to  the  person  adjudged  to  pay  the  costs,  said  objection  shall 
be  heard  and  decided  according  to  the  procedure  and  with  the  remedies 
prescribed  for  incidental  issues. 

1See  article  858  of  the  Organic  Law. 

2 After  the  taxation  of  costs  has  been  approved  there  is  no  further  remedy. — Deci- 
sion of  April  30,  1866. 


LAW    OF    CIVIL    PROCEDURE.  87 

TITLE  XII. 

DISTRIBUTION  OF  BUSINESS. 

ART.  429.  All  civil  matters,  whether  of  contentious  or  voluntary 
jurisdiction,  shall  be  distributed  among  the  courts  of  first  instance 
when  there  is  more  than  one  in  the  town,  and  in  all  cases  among  the 
different  clerks'  offices  of  each  court. 

ART.  430.  Judges  of  first  instance  shall  not  permit  that  any  matter 
be  proceeded  with,  unless  a  memorandum  of  distribution  appears 
thereon. 

In  the  case  said  memorandum  does  not  appear,  he  can  not  issue  any 
other  order  but  one  requiring  that  the  matter  be  submitted  for  dis- 
tribution. 

ART.  431.  Notwithstanding  the  provisions  contained  in  the  forego- 
ing articles,  the  first  proceedings  in  cautionary  attachments,  redemp- 
tions,1 summary  proceedings  to  prevent  the  construction  of  a  new 
work  or  the  demolition  or  strengthening  of  a  construction,  building, 
or  tree  about  to  collapse  or  fall,  the  custody  of  persons,  and  in  all 
other  matters  which,  in  the  judgment  of  the  judge,  are  of  so  per- 
emptory and  urgent  a  character  that  a  delay  thereof  would  give  a 
reasonable  motive  to  fear  that  irreparable  injury  would  be  caused  to 
the  persons  interested,  may  be  made  and  carried  into  effect  by  any  of 
the  judges  or  clerks  of  whom  the  same  is  requested. 

In  such  cases,  as  soon  as  the  urgent  action  has  been  taken,  the  matter 
shall  be  submitted  for  distribution  without  a  delay  of  more  than  three 
days. 

ART.  432.  With  the  exception  of  the  cases  mentioned  in  the  forego- 
ing article,  the  judges  issuing  orders  in  a  matter  which  has  not  as  yet 
been  distributed  shall  be  disciplinary  corrected,  according  to  the  pro- 
visions of  the  following  title. 

ART.  433.  Any  distributor  or  clerk  of  the  court  who  distributes  any 
matter  to  a  court  or  clerk's  office  other  than  the  one  to  which  it  right- 
fully belongs,  shall  incur  a  fine  of  not  less  than  65  nor  more  than  375 
pesetas,  without  prejudice  to  the  criminal  liability  which  may  be  proper. 

ART.  434.  A  clerk  who  acts  in  a  matter  subject  to  distribution  with- 
out it  having  been  assigned  to  him,  shall  incur  a  fine  of  double  the  fees 
he  may  have  earned  thereby. 

ART.  435.  Verbal  actions,  actions  of  unlawful  detainer,  and  other 
matters  over  which  municipal  judges  have  jurisdiction,  are  not  subject 
to  distribution. 

Where  there  are  two  or  more,  each  shall  take  cognizance  of  those 
appertaining  to  his  district,  in  accordance  with  the  rules  established 

lRelracto:  The  right  which  by  law,  custom,  or  agreement  a  person  has  to  annul  a 
sale  and  himself  take  the  thing  sold  to  another  for  the  same  price. — Escrichc,  Dic- 
donario  de  Legislation  y  Jurisprudencia. 


88  LAW    OF    CIVIL    PROCEDURE. 

in  articles  62  and  63,  with  an  appeal  to  the  court  of  first  instance  of 
the  same  district  in  which  they  shall  be  distributed  among  its  clerk's 
offices.1 

TITLE  XIII. 

DISCIPLINARY  CORRECTIONS. 

ART.  436.  Municipal  judges  and  judges  of  first  instance,  and  the 
chambers  of  justice  of  the  audiencias  and  of  the  supreme  court,  shall 
have  the  power  to  disciplinarily  correct — 

1.  Private  individuals  who  do  not  observe  the  proper  order  and 
respect  in  judicial  proceedings. 

2.  Officials  who  take  part  in  actions  for  the   offences  they  may 
commit. 

ART.  437.  Whosoever  shall  interrupt  a  hearing  of  an  action,  or  any 
other  formal  judicial  proceeding,  by  manifesting  ostensible  signs  of  dis- 
approval or  of  approval,  showing  a  lack  of  the  proper  respect  and 
consideration  due  inferior  or  superior  courts,  or  by  disturbing  order 
in  any  manner  whatsoever,  without  his  action  constituting  a  crime 

lrrhe  provisions  of  this  article  have  been  supplemented  by  the  royal  order  of 
September  20,  1891,  the  text  of  which  is  as  follows: 

1.  In  towns  in  which  there  are  two  or  more  municipal  judges,  each  shall  take  cog- 
nizance of  the  matters  appertaining  to  his  district,  in  accordance  with  the  provisions 
of  article  435  of  the  law  of  civil  procedure,  and  subject  to  the  rules  of  competency 
established  in  articles  62,  63,  and  1560,  without  the  parties  being  permitted  to  submit 
either  in  an  implied  or  express  manner  to  one  of  them  to  the  exclusion  of  the  other. 

2.  Municipal  judges  shall  not  proceed  with  any  matter,  the  cognizance  of  which 
pertains  to  another  district,  and  shall  not  issue  any  order  therein  except  one  trans- 
mitting the  papers  or  petitions  to  the  competent  court. 

Letters  rogatory  shall  be  executed  by  the  judges  in  whose  districts  the  proceedings 
referred  to  in  the  commission  are  to  be  fulfilled. 

3.  Judges  of  first  instance,  in  taking  cognizance  of  appeals,  and  chambers  of  justice 
in  deciding  questions  of  competency,  shall,  in  a  proper  case,  impose  the  disciplinary 
corrections  established  in  the  Law  of  Civil  Procedure  upon  the  secretary  of  the 
municipal  court,  who  should  not  have  entered  in  a  statement  the  circumstances 
determining  the  competency,  or  upon  the  municipal  judge  if,  said  circumstances  hav- 
ing been  entered,  he  shall  not  duly  consider  them. 

4.  In  every  municipal  court  of  a  town  in  which  there  are  two  or  more  of  said 
courts,  there  shall  be  kept  a  register  of  all  oral  actions  and  proceedings  to  avoid 
litigation  which  may  be  held,  in  which  there  shall  be  entered  the  date  of  the  pro- 
ceedings or  act,  the  purpose  thereof,  the  names  of  the  plantiff  and  of  the  appellant, 
their  domiciles,  the  street,  place,  or  location  of  the  estate,  when  the  action  involves  a 
real  action,  and  any  other  data  which  may  be  necessary  to  determine  the  competency. 

5.  For  the  purposes  of  said  register,  municipal  judges  shall  furnish  a  daily  report 
to  the  presiding  judge  of  the  territorial  audiencia  of  the  oral  actions  and  proceed- 
ings to  avoid  litigation   (ados  de  conciliaddn)  which  may  have  been  had,  stating 
the  details  referred  to  in  the  foregoing  number  and  the  result  of  each  proceeding 
or  action. 

6.  The  presiding  judges  of  the  audiencias  shall  observe  the  greatest  care  to  secure 
a  proper  fulfillment  of  the  foregoing  provisions,  utilizing  for  this  purpose  the  powers 
granted  them  by  the  organic  law  of  the  judicial  service. 


LAW    OF    CIVIL   PROCEDURE.  89 

(delito),  shall  be  at  once  admonished  by  the  presiding  judge,  and 
expelled  from  the  court  room  if  he  should  not  obey  the  first  admoni- 
tion. 

ART.  438.  Whosoever  shall  refuse  to  comply  with  the  order  of 
expulsion,  shall  be  arrested  and  punished,  without  further  remedy,  by 
a  fine  of  not  more  than  50  pesetas  in  municipal  courts,  of  100  in  courts 
of  first  instance,  and  of  150  in  audiencias,  and  shall  not  be  released  from 
arrest  until  he  has  paid  his  fine,  or  has  been  imprisoned  the  number 
of  days  necessary  to  satisfy  the  fine  at  the  rate  of  15  pesetas  per  day. 

ART.  439.  Witnesses,  experts,  or  any  others  who,  as  parties  or  rep- 
resenting them,  should  show  a  lack  of  the  consideration,  respect,  and 
obedience  due  the  courts  at  formal  judicial  hearings  and  proceedings, 
either  by  words,  actions,  or  in  writing,  shall  be  punished  in  the  man- 
ner stated  in  the  foregoing  article  when  their  offense  does  not  consti- 
tute a  crime. 

The  attorneys  and  solicitors  of  tne  parties  are  not  included  in  these 
provisions,  to  whom  the  prescriptions  of  articles  442  et  seq.  shall 
apply. 

ART.  440.  When  the  acts  referred  to  in  the  two  foregoing  articles 
should  constitute  a  crime  or  misdemeanor,  the  parties  committing  the 
same  shall  be  placed  under  arrest  and  the  proper  preliminary  proceed- 
ings instituted,  and  the  persons  under  arrest  shall  be  placed  at  the  dis- 
posal of  the  court  which  is  to  take  cognizance  of  the  case. 

ART.  441.  All  judicial  acts  performed  under  intimidation  or  force 
shall  be  null. 

Judges  and  chambers  who  shall  have  acted  under  intimidation  or 
force,  as  soon  as  they  are  freed  therefrom,  shall  declare  all  the  pro- 
ceedings so  performed  null,  and  shall,  at  the  same  time,  institute  an 
action  against  the  guilty  parties. 

ART.  442.  Attorneys  and  solicitors  shall  be  disciplinarily  corrected — 

1.  When  they  willfully  disobey  the  provisions  of  this  law  in  their 
instruments  and  petitions. 

2.  When  in  the  exercise  of  their  profession,  they  show  a  lack  of  the 
respect  due  the  superior  and  inferior  courts,  verbally,  in  writing,  or 
by  actions. 

3.  When,  in  the  defense  of  their  clients,  they  show  an  unnecessary 
or  serious  discourtesy  to  their  colleagues. 

4.  When,  upon  being  called  to  order  in  their  oral  arguments,  they 
do  not  obey  the  presiding  judge  of  the  court. 

ART.  443.  Notwithstanding  the  provisions  contained  in  the  fore- 
going article,  solicitors  and  attorneys,  when  called  to  order,  may,  after 
requesting  and  obtaining  the  consent  of  the  judge  or  person  presiding 
at  the  proceedings,  explain  the  words  they  may  have  used,  and  show 
the  sense  or  intention  in  which  they  were  used,  or  fully  satisfy  the 
superior  or  inferior  court. 


90  LAW    OF    CIVIL   PKOCEDUKE. 

ART.  444.  The  assistants  of  superior  or  inferior  courts  shall  also  be 
disciplinarily  corrected  for  the  faults  which  they  may  commit  or  the 
omissions  the}^  may  incur  with  regard  to  their  duties  in  judicial 
proceedings. 

The  same  provisions  shall  apply  to  the  subordinate  officials  of 
superior  or  inferior  courts,  for  the  offences  they  may  commit  in  the 
fulfillment  of  the  judicial  mandates  entrusted  to  them. 

ART.  445.  The  punishment  of  attorneys,  solicitors,  assistants,  and 
subordinate  officials  for  the  offences  above  mentioned,  shall  always 
be  imposed  by  the  court  or  chamber  of  justice  in  which  are  pending 
the  proceedings,  in  which  said  penalties  were  imposed,  or  where  the 
oral  defense  is  presented  in  which  the  former  have  committed  the 
transgression. 

If  they  shall  commit  other  offences  which  deserve  punishment,  it 
shall  be  administratively  imposed  according  to  the  provisions  of  laws, 
ordinances,  or  regulations. 

ART.  446.  The  chambers  of  justice  of  the  supreme  court  may  dis- 
ciplinarily correct  those  of  the  audiencias  and  inferior  judges  for  the 
offences  they  may  have  committed  in  the  proceedings  of  which  the 
former  take  cognizance,  by  virtue  of  appeals  for  annullment  of  judg- 
ment, or  on  complaint,  or  to  decide  questions  of  competency. 

The  civil  chambers  of  audencias  shall  have  the  same  power  with 
regard  to  judges  of  first  instance,  and  the  latter  over  the  municipal 
judges  who  are  subordinate  to  them,  when,  by  virtue  of  an  appeal 
or  other  remedy,  they  take  cognizance  of  the  proceedings  in  which  the 
offense  was  committed. 

ART.  447.  Neither  judges  nor  chambers  of  justice  can  disciplinarily 
correct  the  officials  of  the  department  of  public  prosecution  for 
offences  which  they  may  commit  in  the  judicial  proceedings  in  which 
they  must  take  part. 

In  such  cases  they  shall  confine  themselves  to  informing  their  hier- 
archical superior  of  the  offence  committed,  in  order  that  he  may 
impose  the  correction  which  he  may  deem  proper. 

ART.  448.  The  disciplinary  corrections  which  may  be  imposed  upon 
the  officials  mentioned  in  articles  442  et  seq.  shall  be — 

1.  Admonition. 

2.  Warning  or  advice. 

3.  Reprehension. 

4.  A  fine  not  to  exceed  250  pesetas  when  imposed  by  municipal 
judges,  500  when  imposed  by  judges  of  first  instance,  750  when  imposed 
by  audiencias,  and  1,250  when  imposed  by  the  supreme  court. 

5.  Partial  or  total  retention  of  the  fees  or  of  the  charges  pertaining 
to  the  instruments  or  acts  in  which  the  offence  was  committed. 

6.  Suspension  from  the  exercise  of  the  profession  or  employment 
with  the  deprivation  of  salary  and  emoluments,  which  can  not  exceed 
three  months,  but  may  be  extended  to  six  months  if  a  second  offence 


LAW    OF    CIVIL    PROCEDURE.  91 

be  committed.  During  the  suspension  the  salary  and  emoluments  of 
the  person  punished  shall  belong  to  the  person  discharging  his  duties. 

ART.  449.  The  imposition  of  the  costs  upon  the  aforementioned 
officials  shall  also  be  considered  as  a  disciplinary  correction,  in  the 
cases  in  which  it  is  authorized  by  law. 

ART.  450.  The  disciplinary  correction  shall  be  imposed  eo  instanti, 
in  view  of  what  may  appear  from  the  record  relating  to  the  offence 
committed,  and,  in  a  proper  case,  from  the  contents  of  the  instruments 
or  certificate  which  may  have  been  made  by  the  recording  clerk,  by 
order  of  the  presiding  judge,  at  the  time  the  offence  was  committed,  of 
the  acts  which  are  considered  to  deserve  correction  as  well  as  of  the 
explanations  made  by  the  person  interested. 

ART.  451.  Against  an  order  imposing  any  of  the  corrections  above 
mentioned,  the  party  involved  may  be  heard  in  justification,  if  he 
should  so  request,  within  the  five  days  following  the  day  he  was  noti- 
fied or  when  he  received  official  notice  thereof. 

ART.  452.  The  hearing  in  justification  shall  take  place  in  the  cham- 
ber or  court  where  the  correction  was  imposed,  according  to  the  pro- 
cedure prescribed  for  issues,  and  without  the  necessity  of  the  services 
of  a  solicitor  or  attorne}r. 

If,  for  the  purposes  of  said  hearing,  the  record  showing  the  imposi- 
tion of  said  correction  should  not  be  concluded,  a  separate  record  shall 
be  prepared  containing  the  statements  which  the  judge  or  chamber 
may  deem  proper. 

In  municipal  courts  the  matter  shall  be  heard  and  decided  in  an  oral 
trial.1 

ART.  453.  These  issues  shall  be  heard  with  the  attendance  of  a  rep- 
resentative of  the  department  of  public  prosecution,  and  only  when 
the  correction  consists  in  the  imposition  of  costs  shall  the  litigants 
interested  therein  be  parties  thereto,  if  they  should  request  it. 

ART.  454.  The  correction  may  be  affirmed,  increased,  reduced,  or 
vacated  in  the  decision  of  these  issues. 

ART.  455.  From  the  decisions  rendered  by  municipal  judges,  the  only 
appeal  shall  be  to  the  judge  of  first  instance  of  the  judicial  district. 

From  the  decisions  rendered  by  the  latfer  in  first  instance,  the  only 
appeal  shall  be  to  the  civil  chamber  of  the  proper  audiencia. 

Against  those  rendered  by  chambers  of  justice  of  audiencias  or  of 
the  supreme  court,  there  shall  be  no  remedy  whatsoever. 

ART.  456.  The  department  of  public  prosecution  shall  see  that  the 
provisions  of  this  law  are  duly  complied  with,  for  which  purpose,  in 
causes  and  other  judicial  matters  in  which  it  takes  part,  if  any  offence 

1The  administrative  proceedings  instituted  for  the  imposition  of  disciplinary  cor- 
rections upon  officials  of  the  judiciary  or  upon  their  assistants,  shall  be  drafted  on 
official  paper  in  accordance  with  article  43  of  the  law,  without  prejudice  to  reim- 
bursement in  a  proper  case,  in  accordance  with  article  49  of  the  same. — Royal  order 
of  December  24,  1884. 


92  LAW    OF    CIVIL    PROCEDURE. 

is  noted  which  should  be  corrected,  the  public  prosecutor  shall  recom- 
mend what  he  may  deem  proper  to  the  judge  or  court. 

ART.  457.  The  department  of  public  prosecution  shall  be  informed 
of  any  disciplinary  correction  imposed  upon  officials  of  the  judiciary 
(excepting  that  mentioned  in  subdivision  1  of  article  448)  as  soon  as 
the  decision  is  final,  attaching  thereto  a  certified  copy  of  the  same  drafted 
on  official  stamped  paper. 

Those  imposed  upon  assistants  of  superior  or  inferior  courts  shall 
be  entered  in  a  register,  which  shall  be  kept  in  the  office  of  the  secre- 
tary of  the  same. 

Those  imposed  upon  attorneys  or  solicitors  shall  be  communicated 
to  the  dean  of  the  college  or  association  to  which  they  belong  for  the 
proper  record  and  other  purposes.  Where  these  corporations  do  not 
exist  they  shall  be  entered  in  the  register  of  the  superior  or  inferior 
court. 

ART.  458.  The  provisions  of  this  title  shall  be  understood  without 
prejudice  to  other  prescriptions  of  this  law,  for  the  special  cases  to 
which  they  refer. 


BOOK  II. 

CONTENTIOUS  JURISDICTION. 
TITLE  I. 

PROCEEDINGS  TO  AVOID  LITIGATION. 

ART.  459.  Before  instituting   a  declaratory  action l  a  conciliation 
must  be  attempted  before  the  competent  municipal  judge. 
The  following  are  excepted: 

1.  Oral  actions. 

2.  Declaratory  actions  which  are  brought  as  an  issue  or  consequence 
of  another  action,  or  proceedings  of  voluntary  jurisdiction. 

3.  Actions  in  which  the  public  treasury,  municipalities,  charitable 
institutions,  and,  in  general,  civil  corporations  of  a  public  character, 
are  plaintiffs  or  defendants. 

4.  Actions  in  which  minors  or  incapacitated  persons  are  interested, 
for  the  free  administration  of  their  property. 

5.  Actions  brought  against  unknown  or  uncertain  persons,  or  against 
absentees  who  have  no  known  residence,  or  who  reside  outside  of  the 
territory  of  the  court  before  which  the  action  is  to  be  brought. 

In  the  last  case,  if  the  litigants  should  reside  in  the  same  town,  a 
conciliation  must  be  attempted. 

6.  Declaratory  actions  instituted  to  annul  or  to  demand  the  fulfill- 
ment of  agreements  made  in  proceedings  to  secure  a  conciliation. 

7.  Actions  against  the  civil  liability  of  judges  and  associate  justices. 

8.  Actions  before  arbitrators  and  friendly  compromisers,  proceed- 
ings to  secure  the  settlement  of  estates,  executory  actions,  actions  of 
unlawful  detainer,  summary  proceedings  relating  to  property,  and  for 
temporary  maintenance.2 

1  See  note  to  article  155. 

2  With  regard  to  actions  brought  against  the  State,  and  against  public  corporations, 
although  proceedings  to  secure  a  conciliation  are  not  required,  there  must  be  stated 
in  a  certificate,  authenticated  in  due  form-,  that  the  administrative  remedies  and  other 
means  to  reach  an  agreement  have  been  used,  as  prescribed  by  royal  order  of  June 
9,  1847;  the  law  of  February  20, 1850;  royal  decree  of  September  20, 1851;  article  173 
of  the  instructions  of  May  31,  1855;  the  decree  laws  of  July  9,  1869,  and  August  26, 
1874;  and  the  royal  orders  of  January  11,  1877,  and  March  23,  1886. 

Nevertheless,  the  absence  of  administrative  proceedings,  a  requisite  similar  to  the 
proceedings  to  secure  a  conciliation,  is  not  a  motive  to  raise  questions  of  compe- 
tency on  the  part  of  the  administrative  authorities,  but  a  cause  for  annulment  which 

93 


94  LAW    OF    CIVIL    PEOCEDUEE. 

ART.  460.  Proceedings  to  secure  a  conciliation  shall  not  be  neces- 
sary for  the  interposition  of  actions  of  tanteo  or  retracto  (redemp- 
tion),1 or  any  other  action  which  is  urgent  and  peremptory  in  its 
nature.  But  if  litigation  is  to  be  resorted  to,  the  proceedings  to 
secure  a  conciliation  shall  be  required  or  a  certificate  to  the  effect  that 
a  conciliation  was  attempted  without  effect. 

ART.  461.  The  judge  shall  not  admit  a  complaint  not  accompanied 
by  a  certificate  of  the  proceedings  to  effect  a  conciliation,  or  that  one 
was  attempted  without  result,  in  cases  in  which  it  is  required  by  law. 

Nevertheless,  proceedings  had  without  this  requisite  shall  be  valid 
and  proper,  reserving  the  liability  which  the  judge  may  have  incurred; 
but  said  proceedings  to  secure  a  conciliation  shall  take  place  at  any 
stage  of  the  action  in  which  the  absence  thereof  is  noted.2 

ART.  462.  The  municipal  judges  of  the  domicile,  and,  in  their 
absence,  those  of  the  residence  of  the  defendant,  shall  be  the  only 
ones  competent  in  proceedings  to  effect  a  conciliation  instituted  before 
them,  in  cases  in  which,  according  to  law,  they  must  be  held. 

In  towns  having  more  than  one  municipal  judge,  the  one  of  the  dis- 
trict of  the  place  of  residence  of  the  defendant  shall  be  of  competent 
jurisdiction.3 

ART.  463.  If  a  question  is  raised  as  to  the  competency  of  the  munic- 
ipal judge  before  whom  the  proceedings  to  avoid  litigation  are  insti- 
tuted, or  if  said  judge  is  challenged,  the  appearance  of  the  parties 
shall  be  considered  as  an  attempt  to  secure  a  conciliation,  without 

must  be  considered  by  the  court  taking  cognizance  of  the  cause. — Decision  of  the 
Council  of  State  of  February  9  and  May  13,  1864,  and  others.  At  the  present  time  the 
absence  of  an  administrative  claim  before  the  judicial  proceedings,  constitutes  the 
dilatory  exception  of  number  7,  article  532  of  this  law. 

The  fact  of  proceedings  to  secure  a  conciliation  not  having  been  attempted  does 
not  constitute  a  basis  to  take  an  appeal  for  annulment  of  judgment. — Decision  of 
April  3,  1865. 

A  person  not  taking  part  in  proceedings  to  effect  a  conciliation  is  not  bound  thereby 
and  may  demand  its  annulment. — Decision  of  July  1,  1870. 

With  regard  to  these  proceedings  in  suits  for  divorce,  see  the  decree  of  November 
23,  1872,  and  of  the  regency  of  February  9,  1875. 

1  Tanteo  y  retracto:  The  right  which  certain  persons  have  to  acquire  for  themselves 
a  thing  purchased  by  another,  rescinding  the  sale  already  made.     The  fundamental 
basis  of  the  retracto  is,  like  the  tanteo,  the  right  to  acquire,  in  preference  to  a  third 
person,  a  thing  sold  or  given  in  payment  to  another;  but  in  the  tanteo  this  right  of 
preference  must  be  exercised  before  the  consummation  of  the  contract,  while  by 
means  of  the  retracto,  the  assignment  of  the  estate  made  to  the  purchaser  is  annulled, 
and  the  person  in  whose  favor  this  is  effected  is  substituted  for  the  purchaser  or 
assignee.     Thus  the  lanteo  takes  place  before  the  sale,  and  the  retracto  after  it  has 
been  consummated. 

2  If  a  complaint  is  made  without  a  certificate  to  the  effect  that  a  conciliation  was 
attempted,  this  lack  alone  produces  the  effects  of  this  article.  —Decision  of  April  17, 
1868. 

3This  article  is  applicable  exclusively  to  proceedings  to  secure  a  conciliation. — 
Decision  of  June  3,  1869. 


LAW    OF    CIVIL    PROCEDURE.  95 

further  proceedings,  and  the  plaintiff  may  institute  the  proper  action 
showing-  a  certificate  to  this  effect. 

ART.  464.  For  the  purposes  of  the  proceedings  to  effect  a  concilia- 
tion, the  party  in  interest  shall  appear  before  the  municipal  judge  and 
present  as  many  copies  of  the  complaint  signed  by  him,  or  by  a  wit- 
ness, at  his  request,  should  he  not  be  able  to  sign,  as  there  may  be 
defendants,  and  one  more,  in  which  shall  be  stated: 

The  names,  profession,  and  domicile  of  the  plaintiff  and  defendant. 

The  cause  of  action. 

And  the  date  on  which  said  complaint  is  presented  to  the  court. 

ART.  465.  The  municipal  judge  shall,  on  the  day  the  complaint  is 
filed,  or  on  the  next  working  day,  cite  the  parties  to  appear  on  a  day 
and  hour  designated  by  him,  within  the  shortest  period  of  time  pos- 
sible. 

Twenty-four  hours  at  least  must  intervene  between  the  summons 
and  the  appearance,  which  period  may,  nevertheless,  be  reduced  by 
the  judge  if  there  be  good  cause  therefor. 

In  no  case  can  the  period  exceed  eight  days  from  the  date  of  the 
presentation  of  the  complaint.1 

ART.  466.  The  secretary  of  the  court,  or  the  person  whom  the  latter 
may  designate,  shall  serve  the  summons  upon  the  defendant  or  defend- 
ants, in  accordance  with  the  provisions  of  articles  262  and  263  of  this 
law  relating  to  notifications  of  all  kinds;  but  instead  of  the  copy  of  the 
order,  one  of  the  copies  of  the  complaint  presented  by  the  plaintiff 
shall  be  delivered  to  him,  upon  which  the  secretary  shall  make  a  mem- 
orandum of  the  name  of  the  municipal  judge  ordering  the  summons, 
and  of  the  day,  hour,  and  place  for  the  appearance.  Upon  the  original 
complaint,  which  shall  afterwards  be  filed  in  the  archives,  the  person 
summoned  shall  sign  a  receipt  for  the  copy,  or  a  witness  shall  do  so  at 
his  request,  if  he  is  unable  to  sign. 

ART.  467.  Persons  absent  from  the  place  where  said  conciliation  is 
requested,  shall  be  summoned  by  means  of  a  communication  addressed 
to  the  municipal  judge  of  the  place  where  they  are  residing. 

A  copy  or  copies  of  the  complaint  shall  be  attached  to  the  communi- 
cation to  be  delivered  to  the  defendant. 

The  municipal  judge  of  the  place  of  residence  of  the  defendants 
shall  see,  under  his  liability,  that  the  citation  is  made  in  the  manner 
prescribed  in  the  foregoing  articles,  on  the  first  working  day  after  the 
day  of  the  receipt  of  said  communication,  and  he  shall  return  the  same, 
duly  endorsed,  on  the  same  day  of  the  sumnions,*or  the  next  day  at  the 
latest.  This  communication  shall  be  filed  in  the  archives  with  the 
copies  of  the  complaints  mentioned  in  the  foregoing  article. 

ART.  468.  The  plaintiffs  and  the  defendants  are  obliged  to  appear  on 

1  An  extension  for  the  purpose  of  answering  the  complaint  can  not  be  granted  in 
these  proceedings. — Decision  of  January  14,  1869. 


96  LAW    OF    CIVIL    PROCEDURE. 

the  day  and  hour  fixed.  If  any  of  them  should  not  appear,  and  should 
not  show  good  cause  for  not  attending,  the  proceedings  to  secure  a 
conciliation  shall  be  considered  as  attempted  without  result,  the  costs 
being  taxed  against  the  person  in  default.  . 

ART.  469.  The  plaintiffs  as  well  as  the  defendants  shall  appeal- 
accompanied  by  an  hombre  bueno.1 

Hombres  buenos  in  proceedings  for  conciliation  must  be  Spaniards 
who  are  in  the  full  enjoyment  of  all  their  civil  rights. 

ART.  470.  The  proceedings  to  secure  a  conciliation  shall  be  held 
in  the  following  manner: 

The  plaintiff  shall  commence  by  stating  his  claims  and  indicating 
the  grounds  upon  which  the  same  are  founded. 

The  defendant  shall  answer  whatever  he  may  consider  proper,  and 
may  also  exhibit  any  document  upon  which  he  bases  his  exceptions. 

After  the  answer,  the  persons  interested  may  reply  and  rejoin,  if 
they  so  desire. 

If  there  should  be  no  agreement,  the  hombres  buenos  and  the  munic- 
ipal judge  shall  attempt  to  secure  an  agreement.  If  they  should  be 
unsuccessful  the  proceedings  shall  be  considered  as  closed. 

ART.  471.  A  succinct  record  of  the  proceedings  to  secure  a  concil- 
iation shall  be  drafted  in  a  book  which  shall  be  kept  by  the  secre- 
tary of  the  court.  This  record  shall  be  signed  by  all  the  persons 
present,  and  by  a  witness  for  those  who  should  not  be  able  to  sign, 
at  their  request. 

ART.  472.  In  the  book  referred  to  in  the  foregoing  article  a  mem- 
orandum shall  be  made,  signed  by  the  municipal  judge  and  by  the 
parties  present,  to  the  effect  that  the  proceedings  to  secure  a  con- 
ciliation had  been  held,  at  which  the  defendants  did  not  appear,  if 
such  be  the  case. 

If  there  are  several  defendants,  some  of  whom  appear,  the  pro- 
ceedings to  secure  a  conciliation  shall  be  proceeded  with,  and  shall 
be  considered  as  attempted  without  success  with  regard  to  the  other 
defendants. 

ART.  473.  A  certified  copy  of  the  minutes  of  the  proceedings  to 
secure  a  conciliation  shall  be  given  to  the  person  or  persons  requesting 
the  same,  or  of  the  failure  thereof,  or  that  an  effort  was  made  to  secure 
a  conciliation,  which  failed  because  one  or  more  of  the  defendants  did 
not  appear. 

ART.  474.  The  costs  incurred  in  the  proceedings  to  secure  a  con- 
ciliation shall  be  taxed  against  the  person  instituting  the  same,  and 
the  costs  of  the  certificates  shall  be  paid  by  the  persons  requesting 
them. 

ART.  475.  The  agreement  reached  by  the  parties  at  a  proceeding  to 

1  See  note  to  article  11. 


LAW    OF    CIVIL    PROCEDURE.  97 

secure  a  conciliation  shall  be  enforced  by  the  same  municipal  judge, 
according  to  the  procedure  prescribed  for  the  execution  of  judgments 
rendered  in  verbal  actions,  when  the  interest  involved  does  not  exceed 
1,000  pesetas. 

Whenever  the  amount  involved  exceeds  the  sum  above  mentioned 
it  shall  have  the  validity  and  force  of  an  agreement  contained  in  a 
formal  and  public  instrument. 

ART.  476.  An  action  for  annulment  of  the  agreement  entered  into  at 
proceedings  to  secure  a  conciliation  may  be  brought  for  the  causes 
which  invalidate  contracts. 

The  complaint  in  said  action  must  be  presented  to  the  judge  of  first 
instance  of  the  judicial  district  within  the  eight  days  following  the  pro- 
ceedings to  secure  a  conciliation,  and  it  shall  be  heard  and  determined 
according  to  the  procedure  prescribed  for  declaratory  actions,  based 
upon  their  import. 

If  the  amount  involved  should  not  exceed  1,000  pesetas,  the  action 
shall  also  be  heard  before  the  judge  of  first  instance,  according  to  the 
procedure  prescribed  for  oral  actions,  and  without  further  remedy.1 

ART.  477.  If  the  ordinary  action  is  not  instituted  within  two  years 
following  the  proceedings  to  secure  a  conciliation,  the  latter  proceed- 
ings shall  not  produce  any  effect  whatsoever,  and  new  proceedings  must 
be  held  before  instituting  the  action. 

ART.  478.  Neither  shall  the  prescription  be  interrupted  if  the  proper 
action  be  not  instituted  within  the  two  months  following  the  unsuc- 
cessful proceedings  to  secure  a  conciliation.2 

ART.  479.  The  municipal  judges  shall  forward  to  those  of  first 
instance  of  their  respective  districts  semiannual  statements  of  the 
proceedings  to  avoid  litigation  held  before  them,  in  order  that  they 
may  be  filed  in  the  said  courts  of  first  instance. 

1This  article  has  not  prohibited  the  exercise  of  the  actions  which  may  be  legally 
brought,  for  other  reasons,  when  not  against  the  agreement  entered  into. — Decision 
of  January  4-,  1866. 

Orders  issued  for  the  enforcement  of  the  agreement  entered  into  in  proceedings  to 
secure  a  conciliation,  can  not  be  appealed  from  for  annulment. — Decision  of  September 
28,  1866. 

The  period  of  eight  days  refers  only  to  the  agreement  entered  into  if  the  proceed- 
ings to  secure  a  conciliation  are  valid,  and  not  to  the  vices  which  invalidate  said  pro- 
ceedings.— Decision  of  January  11,  1883. 

After  the  order  issued  for  the  enforcement  of  an  agreement  entered  into  at  pro- 
ceedings to  secure  a  conciliation  has  been  executed,  the  only  remedies  against  the 
same  shall  be  those  granted  by  law  against  final  judgment. — Decision  of  November  11, 
1881. 

2  The  proceedings  to  avoid  litigation  produce  the  interruption  of  the  prescription 
of  ownership  and  other  property  rights,  ' '  provided  that  within  two  months  after  the 
celebration  thereof  a  complaint  as  to  the  possession  or  ownership  of  the  thing  con* 
tested  be  presented  to  the  judge."— Civil  Code,  Art.  1947. 

5901 7 


98  LAW    OF    CIVIL    PROCEDURE. 

TITLE  II. 

DECLARATORY  ACTIONS.1 

ART.  480.  All  contentions  at  law  between  parties  for  which  no 
special  proceedings  are  prescribed  in  this  law  shall  be  heard  and 
decided  in  the  proper  ordinary  declaratory  action. 

ART.  481.  Actions  of  this  kind  are: 

1.  Declaratory  actions  of  greater  import. 

2.  The  same  of  lesser  import. 

3.  Oral  actions.  ^ 

CHAPTER  I.— PROVISIONS  COMMON  TO  DECLARATORY  ACTIONS. 
SECTION  I. — Rules  to  determine  the  proper  action. 

ART.  482.  The  following  shall  be  decided  in  declaratory  actions  of 
greater  import: 

1.  Causes  of  action  in  which  the  amount  involved  exceeds  5,000 
pesetas.2 

2.  Causes  of  action  in  which  the  amount  involved  can  not  be  esti- 
mated, or  can  not  be  determined  according  to  the  rules  established  in 
article  488. 

3.  Those  relating  to  political  or  honorary  rights,  personal  exemp- 
tions and  privileges,  filiations,  paternity,  interdiction,  and  others  involv- 
ing the  civil  status  and  conditon  of  persons. 

ART.  483.  Ordinary  causes  of  action  in  which  the  amount  involved 
is  more  than  1,000  pesetas  and  does  not  exceed  5,000  pesetas,  shall  be 
decided  in  an  action  of  lesser  import.3 

ART.  484.  The  provisions  of  the  two  foregoing  articles  shall  be 
understood  without  prejudice  to  the  provisions  relating  to  executory 
actions. 

ART.  485.  All  questions  between  parties  in  which  the  amount 
involved  does  not  exceed  1,000  pesetas,  shall  be  decided  in  an  oral 
action. 

ART.  486.  All  causes  of  action  between  parties,  whether  before  or 
after  the  commencement  of  an  action,  and  at  any  stage  thereof,  may 
be  submitted  for  decision  to  arbitrators  or  friendly  compromisers 
with  the  consent  of  all  the  persons  interested,  if  they  have  the  legal 
capacity  necessary  to  give  said  consent. 

lJuicio  declarative:  That  involving  doubtful  and  controverted  rights  which  must 
be  judicially  decided. — Escriche,  Diccionario  razonado  de  legislation  y  jurisprudentia. 

2According  to  the  law  of  procedure  of  Spain  (to  which  the  note  to  article  155  refers), 
the  action  of  greater  import  is  that  involving  an  amount  of  more  than  3,000  pesetas, 
while  in  the  Philippines  it  is  the  action  in  which  the  amount  involved  exceeds  2,500 
pesetas.  The  amount  for  Spain  was  changed  by  the  law  of  May  11,  1888. 

3  For  Spain  this  amount  is  between  250  and  3,000  pesetas,  and  for  the  Philip- 
pines between  500  and  2,500  pesetas. 


LAW    OF    CIVIL    PROCEDURE.  99 

The  following  are  excepted  from  this  rule,  and  can  not  therefore 
be  submitted  to  the  decision  of  arbitrators  or  of  friendly  compro- 
misers: 

1.  The  causes  of  action  referred  to  in  number  3  of  article  482. 1 

2.  Questions  in  which,  according  to  law,  the  intervention  of  the 
department  of  public  prosecution  is  necessary. 

AKT.  487.  Complaints  in  intervention,  and  all  other  complaints 
which  are  incidental  to  or  a  consequence  of  another  action  and  which 
must  be  heard  in  the  ordinary  manner,  must  be  heard  and  determined 
according  to  the  proceedings  established  for  the  proper  declaratory 
actions  according  to  the  matter  or  amount  in  litigation. 

If  the  amount  involved  should  not  exceed  1,000  pesetas,  and  the 
complaint  were  incidental  to  an  action  of  which  a  judge  of  first  instance 
is  taking  cognizance,  the  latter  shall  decide  the  same  in  an  oral  action, 
without  further  remedy. 

ART.  488.  The  amounts  involved  in  the  causes,  for  the  purpose  of 
determining  thereby  the  kind  of  declaratory  action  to  be  instituted, 
shall  be  determined  according  to  the  following  rules: 

1.  In  petitory  actions  relating  to  the  right  to   demand  perpetual 
annual  prestations,  the  amount  involved  shall  be  determined  by  one 
annual  payment  multiplied  by  25. 

2.  If  the  prestation  be  for  life,  the  annual  payment  shall  be  multi- 
plied by  10. 

3.  In  obligations  payable  at  different  times,  the  amount  involved 
shall  be  determined  by  the  amount  of  the  entire  obligation,  when  the 
action  involves  the  validity  of  the  obligation  in  its  entirety. 

4.  When  several  credits  belong  to  several  persons  interested  and 
arise  out  of  one  and  the  same  title  against  a  common  debtor,  if  each 
creditor,  or  two  or  more  creditors,  institute  separate  actions  for  the 
payment  of  what  is  due  them,  the  amount  involved,  for  the  purposes 
of  determining  the  character  of  the  action,  shall  be  the  amount  claimed. 

5.  In  actions  relating  to  easements,  the  amount  thereof  shall  be  cal- 
culated by  the  amount  paid  for  said  easements,  if  jt  should  appear. 

6.  In  real  or  mixed  actions  the  amount  involved  shall  be  the  value 
of  the  real  estate  or  thing  in  litigation,  according  to  the  consideration 
appearing  in  the  last  instrument  by  which  said  property  was  alienated. 

When  the  action  involves,  in  addition  to  the  property,  the  profits  or 
rents  which  may  have  accrued  therefrom,  the  latter  shall  be  added  to 
the  value  of  said  property. 

7.  In  actions  involving  several  credits  against  the  same  debtor,  the 
amount  involved  shall  be  determined  by  the  total  amount  of  all  the 
credits. 

8.  In  actions  relating  to  the  payment  of  credits  together  with  interest 
or  profits,  if  the  interest  due  and  unpaid  should  be  claimed  with  the 

1  See  articles  1814  and  1820  of  the  Civil  Code. 


100  LAW    OF    CIVIL    PROCEDURE. 

principal  the  former  shall  be  added  to  the  amount  of  the  credit  in  order 
to  determine  the  amount  involved. 

The  amount  of  the  profits  shall  be  deemed  true  and  exact  if  the 
plaintiff  shall  state  in  his  complaint  the  annual  import  of  the  same  and 
the  time  during  which  they  have  remained  unpaid. 

If  the  amount  of  the  interest  or  profits  due  is  not  true  and  exact,  it 
shall  be  ignored,  and  the  principal  only  shall  be  taken  into  consideration. 

9.  The  provisions  of  the  foregoing  rule  are  applicable  to  the  case  in 
which  damages  are  claimed  together  with  the  principal  amount. 

10.  For  the  purpose  of  determining  the  amount  of  the  claim,  only 
the  interest  and  profits  due  and  unpaid  shall  be  taken  into  considera- 
tion, and  not  those  to  fall  due  later. 

AKT.  489.  The  amount  involved  in  every  action  shall  be  precisely 
determined  according  to  the  rules  established  in  the  foregoing  article, 
and  when  it  cannot  be  determined  by  the  same,  the  class  of  action  in 
which  the  matter  is  to  be  heard  shall  be  determined  in  the  complaint 
itself. 

ART.  490.  The  judge  of  first  instance  shall  proceed  with  the  action 
in  accordance  with  the  procedure  prayed  for  by  the  plaintiff,  unless  he 
considers  himself  incompetent  on  account  of  the  amount  involved,  in 
which  case  he  shall  render  a  decision  to  that  effect,  notifying  the  plain- 
tiff to  allege  his  rights  before  the  competent  judge. 

This  ruling  may  be  appealed  from  for  a  review  and  stay  of  pro- 
ceedings. 

ART.  491.  In  actions  of  greater  and  lesser  import,  when  the  defendant 
does  not  agree  to  the  value  given  to  the  thing  in  litigation,  or  to  the 
character  of  the  action  instituted  by  the  plaintiff,  he  shall  so  state  to 
the  court  in  writing  within  the  first  four  days  of  the  period  allowed 
to  answer  the  complaint,  presenting,  in  a  proper  case,  the  documents 
on  which  he  bases  his  contention. 

Said  period  of  four  days  cannot  be  extended. 

ART.  492.  After  said  written  statement  has  been  presented  to  the 
court,  the  judge  shall  cite  the  parties  to  appear,  fixing  a  day  and  hour 
therefor  within  the  six  days  following,  in  order  that  the  parties  may 
come  to  an  agreement  with  regard  to  the  class  of  action  to  be  adopted. 

If  they  should  not  come  to  an  agreement  and  the  difference  should 
consist  in  the  nonexistence  of  the  data  referred  to  in  the  rules  of 
article  488,  and  each  party  should  place  a  different  value  on  the  amount 
involved  in  the  complaint,  they  shall  at  the  said  hearing  appoint  an 
expert  to  appraise  the  same,  or  each  party  shall  select  one,  and  the 
judge  a  third  one,  for  the  purpose  of  settling  any  differences  which 
may  arise  between  the  other  two. 

The  result  arrived  at,  at  the  appearance,  which  may  be  attended,  in  a 
proper  case,  by  the  attorneys  of  the  parties,  shall  be  succinctly  recorded, 
and  the  statement  shall  be  signed  by  the  persons  attending  and  by  the 
judge  and  the  clerk. 


LAW    OF    OIVTL    PROCEDURE.  101 

ART.  493.  When  the  parties  do  not  come  to  an  agreement  with 
regard  to  the  class  of  action  to  be  adopted,  the  judge,  within  the  two 
days  following  that  of  the  appearance,  or  after  the  decision  of  the 
experts,  in  a  proper  case,  shall  make  such  ruling  thereupon  as  he  may 
consider  proper. 

ART.  494.  There  shall  be  no  remedy  whatsoever  against  a  ruling 
declaring  that  an  action  of  greater  import  is  proper. 

An  appeal  for  annulment  of  judgment  only  shall  lie  against  a  ruling 
declaring  that  an  action  of  lesser  import  is  proper. 

This  appeal  must  be  taken  at  the  same  time  as  an  appeal  from  the 
final  judgment,  but  it  shall  be  necessary  to  prepare  the  same  within 
the  three  days  following  the  notice  of  the  ruling,  by  stating  the  inten- 
tion of  taking  said  appeal  for  annulment  at  the  proper  time. 

If  it  should  be  declared  that  an  oral  action  before  the  competent 
municipal  judge  is  the  proper  action,  an  appeal  for  a  stay  and  review 
of  the  proceedings  lies  from  the  ruling. 

ART.  495.  If  there  should  be  doubt  as  to  the  amount  in  litigation  in 
oral  actions,  the  question  shall  be  decided  by  the  municipal  judge  after 
hearing  the  parties  at  the  time  of  the  appearance  for  trial. 

No  appeal  shall  lie  from  the  decision  of  said  judge  sustaining  his 
jurisdiction,  but  if  an  appeal  be  taken  from  the  final  judgment,  the 
judge  of  first  instance  may  annul  the  proceedings,  if  it  should  appeal- 
that  the  amount  involved  is  greater  than  1,000  pesetas. 

An  appeal  for  a  review  and  stay  of  proceedings  shall  lie  to  the  judge 
of  first  instance  of  the  district  from  a  ruling  of  a  municipal  judge, 
declaring  that  the  amount  or  matter  in  litigation  does  not  come  within 
his  jurisdiction. 

SECTION  II. — Preparatory  proceedings. 

ART.  496.  Every  action  may  be  prepared: 

1.  By  a  demand  made  by  the  party  who  proposes  to  bring  an  action 
upon  the  party  whom  he  intends  to  sue,  for  a  sworn  declaration  with 
regard  to  some  fact  relating  to  the  personality  of  the  latter,  and  with- 
out information  of  which  the  action  cannot  be  brought. 

2.  By  demanding  the  exhibition  of  the  personal  property,  which,  in 
a  proper  case,  is  to  be  the  object  of  the  real  or  mixed  action  which 
he  intends  to  institute  against  the  person  who  has  the  same  in  his 
possession. 

3.  By  the  person  who  believes  himself  to  be  an  heir,  coheir,  or  legatee, 
to   exhibit  the  will,  codicil,  or   testamentary   memorandum    of   the 
testator. 

4.  By  the  buyer  demanding  of  the  seller,  or  the  seller  of  the  buyer, 
in  case  of  eviction,  the  exhibition  of  the  title  deeds  or  other  instru- 
ments having  reference  to  the  thing  sold. 


102  LAW    OF    CIVIL    PEOCFPUBE. 

5.  By  a  partner  or  member  of  an  association  demanding  the  presenta- 
tion of  the  documents  and  accounts  of  the  company  or  association,  of 
a  copartner  or  coowner,  who  may  have  the  same  in  his  possession,  in 
cases  in  which  it  may  be  proper  according  to  law. 

The  judge  shall  grant  the  request  in  any  of  these  cases,  if  he  should 
deem  the  cause  on  which  it  is  based  a  good  one.  If  not  included  in 
the  foregoing  cases,  the  judge  shall  deny  the  same  ex-officio. 

An  order  of  the  judge  denying  said  request  may  be  appealed  from 
for  a  review  and  for  a  stay  of  proceedings.1 

ART.  497.  In  the  first  case  of  the  foregoing  article,  the  procedure 
prescribed  for  confession  in  court  shall  be  followed,  until  a  declaration 
of  confession  is  obtained,  in  a  proper  case. 

ART.  498.  In  the  second  case  of  article  496,  if  the  personal  property 
being  exhibited,  the  plaintiff  should  state  that  it  is  the  property  which 
is  the  object  of  the  action,  the  clerk  shall  enter  a  description  thereof 
in  the  record  and  it  shall  be  left  in  the  possession  of  the  person  exhib- 
iting the  same,  ordering  him  to  preserve  it  in  the  same  condition  until 
the  termination  of  the  action. 

The  deposit  of  said  personal  property  may  also  be  ordered  at  the 
instance  of  the  plaintiff,  if  the  requisites  of  article  1398  necessary  for 
the  ordering  of  a  cautionary  attachment,  are  attendant.  This  deposit 
shall  be  for  the  account  and  at  the  risk  of  the  person  requesting  it, 
and  if  he  should  not  institute  his  action  within  the  thirty  days  follow- 
ing, the  attachment  shall  be  dissolved  dejure,  an  indemnification  for 
the  damages  caused  thereby  being  made. 

The  admonition  ordered  in  the  first  paragraph  of  this  article  shall 
also  remain  without  effect,  if  the  action  is  not  instituted  within  said 
period. 

ART.  499.  In  the  third  case  of  article  496,  if  the  party  shall  desig- 
nate, at  the  time  the  request  is  made,  the  protocol  or  archives  in 
which  the  original  document  is  filed,  he  shall  not  be  required  to  exhibit 
the  document. 

ART.  500.  He  who  shall  refuse,  without  just  cause,  to  make  the 
exhibition  referred  to  in  cases  2,  3,  4,  and  5,  of  article  496,  shall  be 
liable  for  the  losses  and  damages  which  may  be  caused  to  the  plaintiff, 
who  may  claim  the  same  in  the  main  action. 

If  the  party  required  to  make  such  exhibition  objects  thereto,  his 
objection  shall  be  heard  and  decided  according  to  the  procedure  estab- 
lished for  issues. 

ART.  501.  With  the  exception  of  the  cases  mentioned  in  article  496, 
the  person  seeking  to  institute  an  action  can  not  request  a  declaration 

1  The  law  of  civil  procedure  is  not  violated  when  a  request  being  made  for  the 
exhibition  of  title  deeds  by  virtue  of  which  another  possesses  an  estate  is  definitely 
denied,  because  the  cause  for  the  request  does  not  appear  good  in  the  judgment 
the  court.—  Decision  of  April  30,  1870. 


entof 


LAW    OF    CIVJL    PROCEDURE.  103 

under  oath  from  the  opposite  party,  or  from  witnesses,  or  for  any 
other  evidence,  except  when  the  advanced  age  of  some  witness,  the 
imminent  danger  of  his  life,  his  near  departure  to  a  point  where  com- 
munication is  difficult  or  slow,  or  for  other  good  reasons,  said  part}7  is 
in  danger  of  losing  his  rights  for  lack  of  evidence;  in  which  case  he 
may  request,  and  the  judge  may  order,  that  the  witness  or  witnesses 
who  may  be  under  the  circumstances  referred  to,  be  examined  in  the 
manner  prescribed  in  the  proper  articles  of  this  law. 

These  proceedings  shall  be  attached  to  the  record  as  soon  as  the 
action  shall  have  been  instituted. 

SECTION  III. — Presentation  of  documents.1 

ART.  502.  The  following  must  necessarily  be  attached  to  every  com- 
plaint or  answer: 

1.  The  power  of  attorney  by  which  the  solicitor  is  empowered  to 
act,  whenever  he  intervenes. 

2.  The  instrument  or  instruments  showing  the  representative  capac- 
ity of  the  party,  if  he  appears  as  the  legal  representative  of  some 
person  or  corporation,  or  if  the  right  he  claims  is  based  upon  one  con- 
veyed to  him  by  another  by  inheritance  or  otherwise. 

3.  The  certificate  of  the  proceedings  to  effect  a  compromise  (acto  de 
conciliacion)  or  to  the  effect  that  proceedings  to  avoid  litigation  were 
attempted  in  vain,  in  the  cases  in  which  they  are  an  indispensable 
requisite  before  instituting  an  action.2 

ART.  503.  Every  complaint  or  answer  must  also  be  accompanied  by 
the  document  or  documents  upon  which  the  party  interested  bases  his 
right. 

If  said  documents  are  not  at  his  disposal,  he  shall  indicate  the  pro- 
tocol or  archives  in  which  the  originals  are  filed. 

It  shall  be  understood  that  the  plaintiff  has  the  documents  at  his 
disposal,  and  they  must  be  attached  to  the  complaint,  whenever  the 

1  With  regard  to  the  formalities  to  be  observed  in  documents,  see  article  396  of  the 
mortgage  law,  and  article  152  of  the  regulations  of  September  25, 1892,  relating  to  the 
tax  on  property  rights. 

2  See  art.  461  of  this  law. 

This  article  is  violated  when  the  use  of  waters  and  an  easement  being  involved 
and  the  ownership  having  been  acknowledged  by  the  opposite  party,  the  plaintiff  is 
demanded  to  prove  the  same. — Decision  of  November  29,  1888;  decision  of  February 
8,  1888.  , 

Administrators  and  agents  must  attach  to  the  complaint  the  instrument  evi- 
dencing the  capacity  in  which  they  appear  in  the  action. 

A  dilatory  exception  for  lack  of  personality  may  be  taken  against  a  plaintiff  who 
claims  a  right  transferred  to  him,  without  proving  the  assignment  by  an  instrument 
attached  to  the  complaint. — Decision  of  May  21,  1879.  But  the  personality  exists 
from  the  time  of  the  presentation  of  the  instrument  transferring  the  right,  a  proof 
as  to  the  validity  of  this  right  not  being  required.  — Decision  of  June  4,  1879. 


104  LAW    OF    CIVIL    PROCEDURE. 

originals  are  filed  in  a  protocol  or  public  archives  from  which  he  may 
demand  and  obtain  authenticated  copies  of  the  same. 

ART.  504.  The  presentation  of  the  documents  referred  to  in  the  fore- 
going article,  when  they  are  public,  may  be  made  by  means  of  a  simple 
copy,  if  the  person  interested  declares  that  he  has  no  other  authentic 
copies;  but  said  copy  shall  not  produce  any  effect  whatsoever,  if, 
during  the  period  designated  for  taking  evidence,  he  does  not  obtain 
and  include  in  the  record  a  copy  of  the  document  having  the  requisites 
necessary  in  order  to  be  admitted  as  evidence. 

ART.  505.  After  the  filing  of  the  complaint  and  answer,  neither 
the  plaintiff  nor  the  defendant  shall  be  permitted  to  file  any  other  doc- 
uments but  those  mentioned  in  the  following  cases: 

1.  Documents  bearing  a  date  later  than  the  date  of  said  pleadings. 

2.  Documents  bearing  a  date  prior  thereto,  when  the  party  present- 
ing the  same  states  on  oath  that  he  had  no  prior  knowledge  thereof. 

3.  Documents  which  could  not  be  procured  before  for  reasons  for 
which  the  party  interested  can  not  be  blamed,  provided  that  the 
designation  mentioned  in  the  second  paragraph  of  article  503  has  been 
made  at  the  proper  time.1 

ART.  506.  No  document  whatsoever  shall  be  admitted  after  the 
citation  for  judgment.  The  judge  shall,  on  his  own  motion,  reject 
those  which  may  be  presented,  ordering  them  to  be  returned  to  the 
party  without  further  remedy. 

This  shall  be  understood  without  prejudice  to  the  authority  which, 
in  furtherance  of  justice,  is  vested  in  judges  and  courts  by  article  340. 

ART.  50T.  Every  document  presented  after  the  expiration  of  the 
period  fixed  for  the  taking  of  evidence,  shall  be  referred  to  the  oppo- 
site party,  in  order  that,  within  the  period  of  six  days,  which  can  not 
be  extended,  he  may  state  whether  he  acknowledges  the  document  as 
genuine,  efficacious,  and  admissible,  or  the  reasons  he  may  have  for 
objecting  thereto. 

This  statement  shall  be  made  in  a  supplementary  prayer  (otrosi)  in 
the  concluding  pleadings,  when  the  condition  of  the  record  permits  it. 

For  the  purpose  of  making  such  reference  only,  the  original  docu- 
ment shall  be  delivered  to  the  opposite  party  or  parties  in  cases  in 
which  no  copy  is  attached  on  account  of  the  document  being  composed 


; 


1  The  violation  of  this  article  can  not  serve  as  a  basis  for  an  appeal  for  annulment 
of  judgment. — Decision  of  October  10, 1882. 

When  the  plaintiff  designates  the  place  where  the  documents  which  must  be 
attached  to  the  complaint  may  be  found,  and,  before  answer  is  made,  succeeds  in 
attaching  the  same  to  the  records,  said  complaint  can  not  be  rejected  on  account  of 
a  breach  of  law  in  the  manner  of  presenting  the  same. — Decision  of  May  14,  1884. 

No  essential  form  of  procedure  was  violated  in  rejecting  a  document  which  the 
plaintiff  had  requested  be  included  in  the  record,  believing  that  this  should  be  done 
because  it  bore  a  date  later  than  that  of  the  complaint  and  answer,  without  considei 
ing  that  it  related  to  occurrences  of  a  prior  date. — Decision  of  March  22,  1888. 


isider- 


LAW    OF    CIVIL    PROCEDURE.  105 

of  more  than  twenty -five  pages.  If  there  are  as  many  copies  as  there 
are  opposite  parties,  the  period  of  time  for  such  reference  shall  be 
common  and  simultaneous  for  all. 

ART.  508.  A  party  who  allows  the  six  days  to  elapse  without  dis- 
puting the  correctness  of  said  document,  shall  be  considered  to  have 
acknowledged  the  efficacy  thereof  in  the  action. 

ART.  509.  Within  the  three  days  following  the  delivery  of  the  copy 
of  the  objections  made  to  the  document,  the  party  who  shall  have  pre- 
sented the  document  may  briefly  answer,  setting  forth  what  he  may 
deem  proper. 

After  said  period  has  elapsed  no  instrument  whatsoever  shall  be 
admitted  on  this  point. 

ART.  510.  When  the  document  is  a  public  one  and  the  authenticity 
thereof  is  denied,  or  any  of  the  parties  should  be  in  doubt  as  to 
the  correctness  of  the  copy,  it  shall  be  compared  with  the  original, 
with  a  citation  of  the  opposite  parties,  in  the  manner  prescribed  in 
article  598. 

In  such  case,  if  the  certified  copy  or  the  transcript  should  not  con- 
tain the  entire  document  referred  to,  such  particulars  as  the  parties 
may  designate  at  the  time  of  the  comparison  shall  be  added. 

ART.  511.  If  the  document  were  a  private  one,  it  shall  be  considered 
valid  and  efficient  when  the  party  whom  it  prejudices  acknowledges  it 
as  genuine. 

Such  acknowledgment  shall  be  considered  as  made  if  it  be  not 
expressly  objected  to,  or  six  days  are  allowed  to  pass  without  the 
document  being  disputed. 

If  the  said  party  does  not  acknowledge  the  signature,  or  disputes 
the  genuineness  of  the  document,  the  comparison  prescribed  in  articles 
605  et  seq.  shall  be  made. 

ART.  512.  When  the  objection  refers  to  the  admission  of  the  docu- 
ment by  reason  of  its  not  being  included  in  any  of  the  cases  mentioned 
in  article  505,  the  judge  shall  reserve  his  decision  until  final  judgment 
is  rendered. 

ART.  513.  In  case  that  one  of  the  parties  should  contend  that  a 
document  which  may  have  a  well-known  influence  in  the  action  is 
false,  and  institutes  a  criminal  action  for  the  discovery  of  the  crime 
and  of  its  author,  the  action  shall  be  suspended  until  after  a  final 
sentence  is  rendered  in  the  criminal  action. 

Said  suspension  shall  be  decreed  as  soon  as  the  party  interested 
shows  that  the  complaint  in  the  criminal  action  has  been  admitted.1 

There  shall  be  no  remedy  whatsoever  against  this  order. 

1  It  is  not  sufficient  to  indicate  suspicions  as  to  the  falsity,  but  it  is  necessary  to  make 
an  accusation,  as  litigants  may  do  according  to  this  article. — Decisions  of  January  20, 
1866,  and  June  9,  1868. 

After  a  party  has  presented  a  document  in  an  action  he  has  no  right  subsequently 
to  deny  its  authenticity  on  account  of  mere  suspicion,  because  a  document  can  not 


106  LAW    OF    CIVIL    PROCEDURE. 

SECTION!  V. —  Copies  of  instruments  and  documents  and  their  purposes. 

ART.  514.  Every  instrument  presented  in  a  declaratory  action  shall 
be  accompanied  by  as  many  true  copies  thereof,  on  ordinary  paper,  as 
there  are  other  litigants,  which  copies  shall  be  signed  by  the  solicitor, 
or  in  a  proper  case  by  the  party,  being  responsible  for  the  correctness 
thereof. 

For  this  purpose  parties  bringing  the  action  in  common  and  repre- 
sented by  the  same  counsel  shall  be  considered  as  a  single  party. 

The  instruments  mentioned  in  number  4  of  article  10  are  excepted 
from  said  prescription. 

ART.  515.  In  the  same  manner  there  shall  be  accompanied  as  many 
copies  of  every  document  presented  as  there  are  other  litigants. 

If  any  document  is  composed  of  more  than  25  sheets,  the  presenta- 
tion of  copies  thereof  shall  not  be  obligatory,  but  they  shall  be 
admitted  if  presented. 

ART.  516.  The  copies  of  the  instruments  or  documents  shall  be 
delivered  to  the  opposite  party  or  parties  upon  being  notified  of  the 
order  made  with  regard  to  the  respective  instrument,  or  when  the 
proper  citation  or  summons  is  served  upon  them. 

ART.  517.  The  omission  of  the  copies  shall  not  be  a  ground  for  the 
nonadmission  of  the  documents  and  instruments  which  are  presented 
at  the  proper  time.  In  such  case  the  judge  shall  fix,  without  further 
remedy,  the  unextendible  period  which,  taking  into  consideration  the 
length  of  the  instrument  and  documents,  he  may  consider  necessary  to 
make  the  copies;  and  if  they  should  not  be  presented  within  said 
period,  the  clerk  shall  make  the  same  at  the  expense  of  the  solicitor 
or  of  the  party,  if  no  solicitor  took  part. 

From  these  provisions  are  excepted  the  complaints,  which  shall  not 
be  admitted  when  not  accompanied  Iw  the  copies  thereof  and  the 
documents  prescribed. 

ART.  518.  The  original  record  shall  in  all  cases  be  preserved  in  the 
clerk's  office,  where  it  may  be  examined  by  the  parties  or  their  counsel 
during  office  hours,  whenever  they  wish  to  do  so,  without  the  clerk 
charging  any  fees  for  the  exhibition  thereof. 

The  original  papers  shall  be  delivered  or  referred  to  the  parties  only 
in  the  cases  expressly  prescribed  by  law. 

be  classified  as  false  without  the  previous  declaration  required  by  law  11,  Title  III, 
partida  3,  or  which  said  party  could  obtain  by  making  use  of  the  right  granted  by 
the  law  of  civil  procedure. — Decision  of  October  2,  1866. 

Although  the  institution  of  a  criminal  action  is  optional  with  the  parties,  for  a 
suspension  of  the  action  it  is  indispensable  that  the  document,  the  falsity  of  which  is 
alleged,  be  of  importance  therein,  without  the  violation  of  this  article  in  any  case 
being  a  motive  for  an  annulment  of  judgment. 

See  article  361  of  this  law. 


LAW    OF    CIVIL    PROCEDURE.  107 

ART.  519.  The  answers  to  the  pleadings  and  similar  matters  shall  be 
made  in  view  of  the  copies,  documents,  and  orders  which  each  party 
shall  retain  in  his  possession. 

If,  on  account  of  some  document  having  more  than  25  sheets  a  copy 
thereof  should  not  have  been  presented,  the  original  shall  be  delivered 
to  the  opposite  party  for  the  purpose  of  making  answer,  being  after- 
wards attached  to  the  record. 

ART.  520.  Upon  the  expiration  of  the  period  allowed  to  a  party  to 
answer  any  pleading,  proceedings,  or  act,  without  answer  being  made 
and  after  the  expiration,  in  a  proper  case,  of  the  extension  which  may 
have  been  allowed,  such  action  shall  be  taken  as  may  be  proper,  at 
the  instance  of  the  opposite  party. 

Nevertheless,  any  proper  instrument  shall  be  admitted  and  it  shall 
produce  its  legal  effects  if  presented  before  the  day  when  notice  of  the 
order  made  thereupon  is  given.  It  shall  not  be  admitted  thereafter, 
and  said  order  being  considered  final,  the  proceedings  shall  be  con- 
tinued. 

ART.  521.  If  any  document  has  been  delivered  to  the  parties  which 
is  not  returned  within  the  proper  period,  the  proceedings  prescribed 
in  art.  308  for  the  recovery  of  the  record  shall  be  followed. 

ART.  522.  Excluding  the  provisions  of  article  513,  the  provisions 
of  this  section  and  those  of  the  foregoing  one  are  not  applicable  to 
oral  trials,  which  shall  be  governed  by  the  special  rules  therefor.1 

CHAPTER  II.— DECLARATORY  ACTIONS  OF  GREATER  IMPORT. 
SECTION  I. —  Complaint  and  summons. 

ART.  523.  A  declaratory  action  shall  commence  by  the  filing  of  a 
complaint,  which  shall  succinctly  and  in  numerical  order  state  the  facts 
and  the  principles  of  law  upon  which  it  is  based,  and  the  claim  shall 
be  clearly  and  precisely  fixed,  as  well  as  the  persons  against  whom  the 
complaint  is  directed. 

The  kind  of  action  instituted  shall  also  be  stated  when  a  question 
of  jurisdiction  is  to  be  decided  thereby.2 

1  Testamentary  proceedings  being  instituted,  the  heir  and  the  legal  representative 
of  the  estate  must  be  cited  to  appear. — Decision  of  March  16,  1864- 

When  three  or  more  persons  are  sued  together  and  in  solido,  the  domicile  of  the 
greater  number  must  be  taken  into  consideration. — Decision  of  December  13,  1868. 

2  Arts.  224,  225,  254,  256,  and  260  of  the  law  of  1855  are  equivalent  to  articles  523,  539, 
et  seq.  of  the  new  law,  and  establish  the  manner  of  instituting  actions  and  pleading 
exceptions,  and  the  period  within  which  the  questions  of  fact  and  of  law  are  to  be 
definitely  determined  and  which  are  the  object  of  the  judicial  contention,  in  order 
that  the  question  being  confined  to  clear  and  precise  terms,  the  order  of  the  action 
may  be  methodized  and  the  status  of  the  litigants  be  equal,  who  otherwise  would 
constantly  be  surprised  by  new  questions. — Decisions  of  June  15,  1866,  and  May  12, 


108  LAW    OF    CIVIL    PROCEDURE. 

ART.  524.  After  the  complaint,  together  with  the  necessary  copies, 
has  been  presented,  it  shall  be  referred  to  the  defendant  or  defendants, 
who  shall  be  summoned  to  appear  in  the  action  within  a  period  of  nine 
days,  which  can  not  be  extended.1 

ART.  525.  When  the  person  to  be  summoned  does  not  reside  in  the 
place  where  the  action  is  instituted,  the  judge  may  extend  the  period 
for  the  appearance,  granting  such  time  as  he  may  consider  necessary, 
in  yiew  of  the  distances  and  means  of  communication,  said  extension 
not  to  exceed  one  day  for  every  30  kilometers  of  distance. 

ART.  526.  If  the  defendant,  having  been  personally  summoned,  or 
after  service  of  summons  has  been  made  upon  the  nearest  relative  or 
upon  a  member  of  the  household  found  at  his  residence,  allows  the 

1865.  For  this  reason  no  questions  should  be  considered  which  are  raised  after  the 
arguments  have  been  closed. — Decision  of  October  17, 1892. 

The  plaintiff  must  determine  in  the  complaint  precisely  what  he  claims  and  deter- 
mine the  kind  of  action  he  brings;  and  in  the  answers  and  rejoinders  the  plaintiff 
as  wTell  as  the  defendant  must  definitely  determine  the  questions  of  fact  and  of  law 
the  object  of  the  arguments,  no  definite  judgment  being  permitted  on  points  raised 
subsequently  thereto,  and  on  those  which  have  not  been  argued  or  with  regard  to 
which  no  evidence  has  been  taken. — Decisions  of  December  4,  1865,  and  May  19,  1863. 
An  indication  of  the  action  brought  is  now  only  necessary  in  the  case  of  the  second 
paragraph  of  article  523. 

Thus,  if  said  instruments  should  not  be  objected  to  by  the  opposite  party  or  the 
nullity  demanded  of  a  public  document,  upon  which  the  opposite  party  bases  his 
cause  of  action,  the  validity  of  said  document  must  be  admitted  as  an  unquestionable 
fact,  and  can  not  be  contested  afterwards  for  the  purpose  of  taking  an  appeal  for 
annulment  of  judgment. — Decision  of  January  30,  1864. 

When  the  action  is  based  upon  the  nullity  of  an  act  or  obligation,  a  declaration  of 
nullity  must  previously  be  requested,  and  consequently  an  annulment  of  the  other 
rights  to  which  it  gave  rise. — Decisions  of  April  26,  1861,  January  30,  1864,  April  28, 
and  May  12,  1865.  But  this  is  understood  with  regard  to  the  plaintiff  and  not  to  the 
defendant  who  complies  with  this  provision  by  taking  an  exception  alleging  the 
nullity  of  the  document  and  its  consequences. — Decision  of  December  7,  1885. 

It  is  not  necessary  to  give  the  technical  name  to  the  action  instituted,  but  it  is 
sufficient  to  determine  the  class  to  which  it  belongs,  etc. — Decision  of  October  7,  1858. 
Actions  are  not  classified  according  to  the  name  given  them  by  the  parties,  but 
according  to  the  matter  involved. — Decision  of  October  14,  1886. 

A  decision  which  definitely  decides  a  cause  can  not  possibly  violate  articles  523  et 
seq.  of  this  law,  which  refer  to  the  form  in  which  the  complaint  is  to  be  made  in 
order  to  be  admitted,  and  it  is  evident  that  after  having  been  admitted  it  can  not  be 
alleged  that  a  decision  declaring  that  there  was  no  basis  for  the  action  signifies  a  non- 
admission  of  the  complaint. — Decision  of  June  7,  1884. 

A  complaint  can  not  be  rejected  without  any  proceedings  under  the  pretext  of 
being  unjust  and  frivolous,  if  it  appears  to  have  all  the  external  legal  conditions. — 
Decision  of  January  31,  1885. 

With  regard  to  the  prescription  of  actions,  the  lapse  of  time  is  sufficient  for  it  to 
take  place  without  the  other  requisites  which  the  law  requires  for  the  prescription 
of  the  ownership  of  real  estate  being  necessary  therefor. — Decision  of  June  23, 1886. 

TThe  omission  of  the  copies  of  the  documents  on  which  the  cause  of  action  is  based 
does  not  constitute  a  basis  for  an  annulment  of  judgment  mentioned  in  subdivision  1 
of  article  1691  of  this  law.—  Decision  of  July  10,  1886. 


LAW    OF    CIVIL    PROCEDURE.  109 

period  fixed  for  the  appearance  to  expire  without  appearing  and  be 
declared  in  default,  the  complaint  shall  be  considered  as  answered. 
After  being  informed  of  this  order,  the  action  shall  be  proceeded  with 
in  default,  other  notifications  to  be  served  thereafter  being  made  within 
the  limits  of  the  court. 

ART.  527.  If  the  summons  should  have  been  served  by  delivery  to 
servants  or  neighbors,  or  by  means  of  edicts,  and  entry  in  default  on 
account  of  the  failure  of  the  defendant  to  appear  has  been  requested, 
if  he  should  not  be  found  at  his  residence,  a  second  summons  shall  be 
issued  in  the  same  manner  as  was  the  first  one,  citing  him  to  appear 
within  a  period  half  that  fixed  in  the  previous  summons. 

If  the  second  period  expires  without  appearance,  he  shall  be  declared 
in  default,  and  the  complaint  shall  be  considered  answered  at  the 
instance  of  the  plaintiff,  this  order  and  all  others  thereafter  made, 
being  served  within  the  court. 

ART.  528.  If  there  are  several  defendants,  the  period  for  appearance 
to  answer  shall  begin  to  run  and  ba  counted  for  all  of  them  on  the  day 
following  that  on  which  the  last  defendant  summoned  was  served. 

Until  this  period  expires,  entry  of  default  can  not  be  requested 
against  any  of  said  defendants,  and  such  request  shall  be  presented  in 
a  single  petition  relating  to  all  the  defendants  in  default. 

ART.  529.  After  the  defendant  has  duly  appeared,  he  shall  be  con- 
sidered as  a  party  to  the  action  and  shall  be  required  to  make  answer 
to  the  complaint  within  twenty  days  thereafter. 

This  period  shall  be  common  for  all  the  defendants  when  there  are 
several,  unless,  by  reason  of  the  plaintiff  not  having  submitted  the  copy 
of  a  document  exceeding  twenty -five  sheets  in  length,  the  original  one 
must  be  delivered  to  each  of  said  defendants,  and  they  can  not  litigate 
jointly.  In  such  case  the  period  within  which  to  make  answer  shall  be 
twenty  days  for  the  first  of  the  defendants,  and  ten  days  for  each  of  the 
others. 

ART.  530.  In  case  that  there  are  several  defendants,  they  must  litigate 
jointly  and  be  represented  by  the  same  counsel,  if  the  exceptions  they 
plead  are  all  the  same. 

If  they  are  different  they  may  litigate  separately.  If  it  should 
appear  from  the  answers  that  the  same  exceptions  have  been  pleaded, 
the  judge  shall  compel  such  defendants  thereafter  to  litigate  jointly 
and  be  represented  by  the  same  counsel. 

SECTION  II. — Dilatory  exceptions. 

ART.  531.  If  the  defendant  should  plead  any  dilatory  exception,  he 
shall  not  be  obliged  to  answer  the  complaint  until  the  same  has  been 
disposed  of,  which  must  always  be  done  before  any  further  proceeding 
in  the  action. 


110  LAW    OF    CIVIL    PROCEDURE. 

ART.  532.  The  following  only  shall  be  admissible  as  dilatory  excep- 
tions: 

1.  Lack  of  jurisdiction.1 

2.  Want  of  personality  on  the  part  of  the  plaintiff  on  account  of  the 
lack  of  some  qualification  necessary  to  appear  in  an  action,  or  because 
he  does  not  prove  the  character  or  representative  capacity  under  which 
he  sues. 

3.  The   want  of    personality  in  the   solicitor   of   the  plaintiff,  on 
account  of  the  insufficiency  or  illegality  of  the  power  of  attorney. 

4.  Want  of  personality  on  the  part  of  the  defendant,  because  he 
does  not  have  the  character  or  representative  capacity  under  which  he 
is  sued. 

5.  The  pendency  of  another  action  in  another  competent  superior 
or  inferior  court. 

6.  A  legal  defect  in  the  manner  in  which  the  complaint  is  made. 

It  shall  be  understood  that  this  defect  exists  when  the  requisites 
referred  to  in  article  523  are  not  complied  with  in  the  complaint. 

7.  The  absence  of  a  prior  demand  made  administratively,  when  the 
complaint  is  directed  against  the  public  treasury.2 

ART.  533.  If  the  plaintiff  were  a  foreigner,  a  demand  from  the 

1  Declinatures  must  be  heard  and  decided  as  issues  even  when  interposed  in  favor 
of  the  administrative  authorities,  requiring  therefore  a  hearing  of  the  department  of 
public  prosecution. — Decision  of  July  12,  1880. 

When  the  appeal  is  based  on  the  want  of  jurisdiction  on  account  of  the  question 
involved,  the  appellant  considering  that  the  same  is  of  an  administrative  character, 
an  appeal  for  breach  of  form  is  not  proper,  but  an  appeal  for  breach  of  law  may  be 
taken  in  accordance  with  article  1692,  number  6,  of  the  Law  of  Civil  Procedure. — 
Decision  of  April  27,  1889. 

2  The  directors  of  associations  in  liquidation  retain  their  powers  to  demand  the 
fulfillment  of  obligations  in  favor  of  the  same  before  their  dissolution. — Decision  of 
October  12,  1888. 

A  litigant  can  not  allege  the  lack  of  personality  of  an  opposite  party  when  it  has 
been  recognized  in  other  questions.  Nor  can  the  personality  of  a  solicitor  be  ques- 
tioned on  account  of  the  insufficiency  of  a  power,  especially  if  this  was  eprrected, 
provided  that  said  circumstance  does  not  affect  the  validity  of  the  power. — Decision 
of  July  4,  1878. 

A  ruling  relating  to  the  dilatory  exceptions  of  want  of  jurisdiction  and  litis  pen- 
dencia  is  not  definite  for  the  purposes  of  an  annulment  of  judgment,  because  it  does 
not  put  an  end  to  the  action. — Decision  of  March  31,  1885. 

The  circumstance  that  a  complaint  administratively  made  in  the  name  of  the  State 
had  not  been  made  before  the  judicial  complaint,  can  not  affect  the  question  of  com- 
petency.— Decision  of  April  27,  1880. 

That  is  to  say,  this  prior  administrative  complaint  is  equivalent  to  proceedings 
to  secure  a  conciliation,  and  as  the  absence  thereof  does  not  vitiate  the  judicial  pro- 
ceedings according  to  article  461,  the  omission  of  the  preliminary  administrative 
proceedings  can  not  affect  it,  nor  can  it  be  invoked  as  a  basis  to  raise  a  question  as  to 
the  competency  of  the  court,  as  has  been  declared  in  a  number  of  decisions,  of  which 
may  be  cited  those  of  January  30,  1865,  April  19,  1878,  August  10,  1879,  and  May 
20,  1882. 


LAW    OF    CIVIL    PKOCEDUKE.  Ill 

defendant  for  security  for  the  purpose  of  satisfying  anything  which 
may  result  from  the  action,  in  the  cases  and  in  the  manner  in  which 
said  security  is  demanded  of  Spaniards  in  the  country  to  which  said 
foreigner  belongs,  shall  also  be  considered  a  dilatory  exception.1 

ART.  534.  Dilatory  exceptions  may  be  pleaded  within  six  days  only, 
counting  from  the  day  following  the  notification  of  the  order  requiring 
an  answer  to  the  complaint. 

After  said  period  has  expired  these  pleas  must  be  alleged  in  the 
answer  and  shall  not  produce  the  efi'ect  of  suspending  the  course  of 
the  action. 

ART.  535.  All  dilatory  exceptions  must  be  pleaded  by  the  defendant 
at  the  same  time  and  in  the  same  instrument;  if  he  does  not  do  so,  he 
can  only  make  use  of  those  not  pleaded  in  his  answer  to  the  complaint. 

ART.  536.  All  dilatory  exceptions  shall  be  referred  to  the  plaintiff 
for  a  period  of  three  days. 

After  the  plaintiff  has  returned  the  exceptions  they  shall  be  heard 
and  determined  in  the  manner  prescribed  for  issues. 

ART.  537.  The  judges  shall  first  decide  upon  the  declinatory  pleas 
and  exceptions  to  the  pendency  of  an  identical  action  in  another  court 
if  any  of  these  exceptions  have  been  pleaded. 

If  the  judge  declares  himself  competent,  he  shall  at  the  same  time 
decide  all  other  dilatory  exceptions. 

In  any  case  the  ruling  hereupon  may  be  appealed  from  for  a  review 
and  for  a  stay  of  proceedings.2 

ART.  538.  After  the  decision  overruling  the  dilatory  exceptions  has 
been  agreed  to,  or  after  it  has  become  final,  notice  shall  be  served  upon 
the  defendant  at  the  instance  of  the  plaintiff  requiring  him  to  answer 
the  complaint  within  the  ten  days  following  the  service  of  the  order. 

lrThe  dilatory  exceptions  are  all  specified  in  this  law,  and  that  of  security  for  the 
results  of  the  action  can  only  be  pleaded  in  the  case  indicated.  A  decision  which  dis- 
allows this  exception  is  not  definite  for  the  purposes  of  an  annulment  of  judgment, 
nor  does  an  appeal  lie  therefrom. — Decision  of  March  13,  1871. 

This  exception  can  not  be  pleaded,  whatever  be  the  laws  of  the  country  to  which  the 
foreigner  belongs,  when  the  latter  has  resided  many  years  in  Spain  engaged  in  com- 
merce and  is  a  member  of  commercial  associations,  and  consequently  does  not  require 
this  guaranty  for  the  purpose  of  alleging  his  rights  before  the  courts  of  the  Kingdom 
arising  from  contracts  executed  in  Spain  and  with  Spaniards. — Decision  of  October  13, 
1881. 

In  order  that  this  dilatory  exception  be  admissible  and  proper  in  an  action,  it  is 
not  sufficient  that  the  litigant  in  question  is  a  foreigner,  but  it  is  indispensable  that 
said  caution  be  required  of  Spaniards  in  the  country  to  which  he  belongs,  or  of  which 
he  is  a  citizen. — Decision  of  June  30,  1877. 

2  When  the  exception  to  the  jurisdiction  is  allowed,  the  judge  must  abstain  from 
deciding  any  other  questions. — Decision  of  April  17,  1886. 

A  decision  overruling  dilatory  exceptions  is  not  definite. — Decision  of  September  29, 
188G. 


112  LAW    OF    CIVIL    PROCEDURE. 

SECTION  III. — Answers,  counterclaims,  replications,  and  rejoinders. 

ART.  539.  The  defendant  shall  make  his  answer  in  the  manner  pre- 
scribed for  the  complaint. 

ART.  540.  If  the  answer  is  not  filed  within  the  time  fixed  therefor, 
the  complaint  shall  be  considered  as  answered  upon  the  petition  of  the 
plaintiff  and  the  proceedings  shall  be  continued  as  may  be  proper.1 

ART.  541.  In  the  answer  to  the  complaint,  the  defendant  must  plead 
all  the  peremptory  exceptions  which  may  be  proper  and  the  dilatory 
ones  which  were  not  taken  within  the  period  prescribed  in  article  534. 

In  the  same  answer  may  also  be  included  the  counter-claim  in  cases 
in  which  it  may  be  proper. 

No  counter-claim  shall  be  admitted  when  the  judge  has  no  jurisdic- 
tion to  take  cognizance  of  the  same  on  account  of  the  matter  therein 
contained.2 

1  An  answer  may  be  admitted  after  the  period  of  twenty  days  has  expired,  and  an 
extension  may  be  granted  in  a  proper  case  if  the  plaintiff  does  not  utilize  the  means 
or  complaints  authorized  by  articles  308  and  520  of  the  law. — Decision  of  May  3,  1884. 

2  The  exception  of  res  judicata  requires  the  threefold  identity  of  persons,  things, 
and  actions,  and  the  reservation  of  rights  made  in  the  original  judgment  can  not  be 
understood  in  the  sense  that  the  same  question  can  be  reopened  between  the  same 
persons  on  the  same  grounds. — Decision  of  February  28,  1884. 

The  exception  of  res  judicata  requires  the  threefold  identity  of  person,  thing,  and 
action. — Decisions  of  July  6,  1882;  June  15,  October  15,  1885;  January  21,  March  24, 
November  2,  and  December  7,  1886. 

The  irrevocability  of  res  judicata  refers  only  to  the  persons  who  have  been  parties 
to  the  action. — Decision  of  December,  29,  1883. 

Although  it  is  true  that  in  the  answer  to  the  complaint  the  defendant  should  plead 
his  exceptions,  and  in  replications  and  rejoinders  should  state  definitely  the  points  of 
fact  and  of  law  under  discussion,  it  is  no  less  certain  that  afterwards,  in  support  of  the 
counter  exceptions,  documents  may  be  presented  of  a  later  date,  or  under  oath  of 
being  new  evidence,  should  they  be  of  prior  date. — Decision  of  October  12,  1866. 

Although  res  judicata  does  not  affect  the  persons  who  have  not  been  parties  to 
the  action,  it  is  evident  that  it  may  be  pleaded  as  an  exception  when  an  action  is  in 
question,  in  which  said  parties  bring  a  similar  action  with  the  same  object  in  view, 
basing  their  claims  upon  the  same  rights  contained  in  similar  titles,  so  that  the  situa- 
tion of  the  parties  is  identical. — Decision  of  October  6,  1884. 

If  an  identity  of  persons  and  action  exists,  but  not  of  things,  the  exception  of  res 
judicata  can  not  be  pleaded. — Decision  of  October  20,  1884. 

Decisions  rendered  in  executory  actions  have  not  the  force  of  res  judicata. — Decision 
of  March  6,  1885. 

Although  res  judicata  prejudices  only  the  persons  who  are  parties  to  the  action  in 
which  the  final  judgment  was  rendered,  as  well  as  their  heirs  and  legal  representa- 
tives, this  general  rule  does  not  govern  nor  does  it  apply  in  the  case  of  the  declara- 
tion of  the1  validity  or  nullity  of  a  will,  which  affects  all  those  who  derive  their  action 
and  right  therefrom. — Decision  of  June  2,  1886. 

If  the  action  being  heard  in  the  absence  and  in  the  default  of  the  defendants,  the 
prescription  of  the  rescissory  action  has  neither  been  proposed  nor  been  the  object 
of  the  arguments,  and  which  exception  might  have  been  pleaded  by  said  defendants, 
in  a  proper  case,  there  thus  being  lacking  legal  terms  to  allow  or  overrule  said  excep- 


LAW    OF    CIVIL    PEOCEDUEE.  113 

ART.  542.  After  the  answer  to  the  complaint  has  been  filed,  a  coun- 
ter claim  can  not  be  filed,  the  defendant  reserving  his  right,  which  he 
may  exercise  in  the  proper  action. 

ART.  543.  The  exceptions  and  the  counter  claim  shall  be  heard  at 
the  same  time  and  in  the  same  manner  as  the  principal  issue  of  the 
action,  and  shall  be  decided  with  the  latter  in  the  final  judgment.1 

The  peremptory  exception  of  res  judicata  is  excepted  when  it  is  the 
only  one  pleaded.  In  such  case,  if  the  defendants  should  request  it, 
said  exception  may  be  heard  and  decided  according  to  the  procedure 
prescribed  for  incidental  issues.2 

ART.  544.  The  defendant  may  make  use  of  the  privilege  which  is 
granted  the  plaintiff  in  article  501,  to  request  the  examination  of  wit- 
nesses before  the  expiration  of  the  period  of  time  prescribed  for  the 
taking  of  evidence,  in  the  cases  and  in  the  manner  prescribed  in  said 
article. 

ART.  545.  The  answer  to  the  complaint  shall  be  referred  to  the 
plaintiff  for  a  period  of  ton  days  in  order  to  permit  him  to  reply 
thereto,  and  the  replication  for  a  similar  period  to  the  defendant,  in 
order  that  he  may  rejoin  thereto. 

ART.  546.  The  plaintiff  may  waive  a  replication,  in  which  case  a 
rejoinder  shall  not  be  permitted.3 

The  replication  shall  be  considered  as  waived  by  the  plaintiff  when 
he  expressly  does  so,  or  when  he  allows  the  period  of  time  required 
for  the  filing  thereof  to  expire  without  presenting  the  same,  and  when 
the  opposite  party  requests  that  the  papers  referred  to  the  plaintiff  be 
ordered  returned. 

In  such  case  the  parties  must,  within  the  three  days  following, 
request,  should  they  not  already  have  done  so,  that  the  evidence  in 
the  case  be  taken,  it  being  understood,  otherwise,  that  they  waive  the 
right  to  do  so. 

ART.  547.  In  the  replication  and  rejoinder,  the  plaintiff  as  well  as 
the  defendant  shall  concisely  and  definitely,  in  numbered  paragraphs, 
state  the  points  of  fact  and  of  law  which  are  the  object  of  the  conten- 
tions, the  adjudging  chamber  in  doing  so  upon  its  own  initiative  commits  a  violation 
from  which  an  appeal  for  annulment  of  judgment  may  be  taken. — Decision  of  Decem- 
ber 15,  1887. 

Exceptions  which  are  not  pleaded  in  the  answers  or  replications,  can  not  be  con- 
sidered in  the  judgments  nor  serve  as  a  basis  for  an  appeal  for  annulment  of  judg- 
ment.— Dcrixion  of  February  23,  1888. 

1  When  in  the  answer  to  the  complaint  a  counter  claim  is  presented,  the  final  judg- 
ment must  decide  the  complaint  and  the  counter  claim,  and  if  this  is  not  done  the 
provisions  of  this  article  are  violated. — Decision  of  April  22,  1869. 

2  Articles  1251  and  1252  of  the  Civil  Code  state  the  conditions  or  requisites  which 
produce  rex  judic<it<i. 

3  The  lack  of  a  replication  does  not  constitute  an  implied  acknowledgement  and 
confession  of  the  facts  alleged  in  the  answer  and  rejoinder. — Decision  of  March  24,  1S85. 

5901 8 


114  LAW    OF    CIVIL    PROCEDURE. 

tion,  being  permitted  to  modify  or  make  additions  to  those  contained 
in  the  complaint  and  answer. 

They  may  also  amplify,  add  to,  or  modify  the  allegations  and  excep- 
tions contained  in  the  complaint  and  in  the  answer,  but  they  can  not 
change  those  which  are  the  principal  object  of  the  action.1 

AKT.  548.  In  the  replications  and  rejoinders  each  party  shall  clearly 
admit  or  deny  the  material  allegations  contained  in  the  pleadings  of 
the  opposite  party.  Silence  or  evasive  answers  may  be  considered  in 
the  judgment  as  a  confession  of  the  facts  to  which  they  refer.* 

They  may  also  request,  by  a  supplementary  prayer  (otrosi),  that  the 
action  be  decided  without  further  proceedings,  or  that  evidence  be 
taken  therein.2 

SECTION  IV. — Admission  of  evidence,  time  within  which  to  he  taken, 
and  general  provisions  relating  thereto. 

ART.  549.  The  judge  shall  order  that  evidence  in  the  action  be  taken 
in  case  that  all  the  litigants  request  it. 

If  any  litigant  should  object  thereto,  a  day  shall  be  fixed  for  hearing 
the  question  of  submission  for  the  taking  of  evidence,  at  which  hear- 

1 A  complaint  relating  to  a  sum  of  money  is  not  modified  when  a  sum  of  money 
received  subsequently  is  acknowleeged  and  deducted  in  the  replication. — Decision  of 
March  9,  1885. 

In  the  replications  and  rejoinders,  the  parties  may  add  to  or  modify  the  claims 
contained  in  the  complaint  and  in  the  answer. — Decision  of  February  10,  1886. 

The  petitions  deduced  in  the  complaint  and  in  the  answer  subsist,  and  they  can 
not  be  considered  modified  by  the  replications  and  rejoinders,  if  it  be  not  expressly 
requested  or  stated,  or  when  it  can  not  be  inferred  as  a  necessary  consequence  of  the 
points  of  fact  and  of  law  indicated  in  said  instruments. — Decision  of  October  14,  1866. 

Law  2,  Title  XVI,  Book  XI  of  the  Novisima  Recopilacion,  which  permits  judg- 
ment to  be  rendered  after  the  truth  has  been  arrived  at,  is  not  observed  since  the 
publication  of  the  law  of  civil  procedure,  as  the  supreme  court  has  repeatedly 
stated. — Decisions  of  June  26,  1866,  and  December  27,  1864. 

According  to  Law  25,  Title  II,  Partida  3,  although  the  plaintiff  when  he  deter- 
mines the  reason  upon  which  he  bases  his  claim  to  a  thing,  afterwards  bases  his 
claim  upon  another  reason,  but  he  can  not  do  so  in  the  replication  and  rejoinder,  nor 
in  the  second  instance,  but  he  may  do  so  in  a  new  action,  upon  the  closing  of  the 
previous  one. — Decision  of  May  21,  1861. 

The  points  of  fact  and  of  law  must  be  definitely  fixed  in  the  replications  and 
rejoinders  and  new  exceptions  can  not  afterwards  be  pleaded,  nor  if  they  are 
pleaded,  can  they  be  taken  into  consideration. — Decisions  of  May  21,  1859,  and  Sep- 
tember 22,  1865. 

The  complaint  may  be  extended  in  the  replication,  but  there  can  not  be  deduced 
in  the  same  a  petition  and  a  new  action  entirely  different  from  that  deduced  in  the 
complaint. — Decision  of  December  26,  1878. 

2  The  lack  of  a  replication  does  not  constitute  either  an  acknowledgment  nor  an 
implied  confession  of  the  facts  alleged  in  the  answer  to  the  complaint. — Decision  of 
March  24,  1885. 

The  facts  alleged  in  order  to  prove  or  deny  the  complaint  should  be  proven  by 
those  who  advance  them. — Decision  of  April  18,  1887,  and  November  18,  1887. 


LAW    OP    CIVIL    PROCEDURE.  115 

ing  the  attorneys  of  the  parties,  if  present,  may  be  heard,  the  judge 
deciding  what  he  may  deem  proper. 

ART.  550.  The  ruling  by  which  evidence  is  ordered  taken  can  not  be 
appealed  from;  the  ruling  by  which  the  taking  of  evidence  is  refused 
may  be  appealed  from  for  a  review  and  stay  of  proceedings.1 

ART.  551.  If  the  litigants  should  have  agreed  to  submit  the  case 
for  judgment  without  the  taking  of  evidence,  the  judge  shall  order  that 
the  record  be  brought  before  him  and  shall  cite  the  parties  to  appear 
for  judgment. 

ART.  552.  The  ordinary  period  for  the  taking  of  evidence  shall  be 
divided  into  two  parts  common  to  all  parties. 

The  first  period  of  twenty  days,  which  can  not  be  extended,  shall  be 
for  the  purpose  of  stating  in  one  or  more  written  instruments  all  the 
matters  upon  which  they  desire  evidence  to  be  taken. 

The  second  period  of  thirty  days,  which  can  not  be  extended  either, 
shall  be  for  the  purpose  of  taking  all  the  evidence  proposed  by  the 
parties. 

Within  these  periods  the  judge  may,  in  view  of  the  circumstances 
of  the  case,  grant  such  time  as  he  may  deem  sufficient  therefor,  which 
shall  not  be  less  than  ten  days  for  the  first,  nor  fifteen  days  for  the 
second  period,  but  he  shall  extend  said  periods  of  time  to  the  maxi- 
mum when  any  of  the  parties  request  it. 

ART.  553.  The  periods  mentioned  in  the  foregoing  article  can  not  be 
suspended,  except  by  reason  of  force  majeure  which  prevents  the 
submission  or  the  taking  of  evidence  within  the  same. 

This  provision  shall  be  applicable  to  the  extraordinary  periods  of 
time  for  the  taking  of  evidence  referred  to  in  the  following  articles.2 

ART.  554.  The  extraordinary  period  for  the  taking  of  evidence  shall 
be  granted  if  it  is  to  be  taken  outside  of  the  islands  of  Cuba  and  Porto 
Rico  or  of  their  adjacent  ones.3 

ART.  555.  The  extraordinary  periods  shall  be — 

Four  months  if  the  evidence  is  to  be  taken  in  the  islands  of  Cuba 
and  Porto  Rico  reciprocally,  or  in  the  other  Antilles. 

Six  months  if  in  Europe  or  the  Canary  Islands. 

Eight  months  if  on  the  continents  of  America,  or  Africa,  or  ports  of 
the  Levant. 

1  From  an  improper  ruling  refusing  to  allow  evidence  to  be  taken  an  appeal  for 
annulment  of  judgment  lies,  in  a  proper  case,  for  breach  of  form  when  a  final  judgment 
is  rendered,  but  not  for  a  breach  of  law. — Decision  of  October  11,  1886. 

2  The  refusal  to  suspend  the  period  for  the  taking  of  evidence  cannot  be  considered 
as  equivalent  to  a  refusal  to  admit  evidence. — Decision  of  May  12,  1886. 

The  suspension  of  the  period  can  not  be  considered  as  a  proceeding  for  the  taking 
of  evidence  of  those  specially  mentioned  in  the  law,  and  which  refusal  may  give 
rise  to  an  appeal  for  annulment  of  judgment  by  reason  of  a  breach  of  form. — Decision 
of  March  28,  1888. 

3  A  litigant  may  take  advantage  at  the  same  time  as  his  adversary  of  the  extra- 
ordinary period  granted  upon  the  petition  of  the  latter. — Decision  of  April  8,  1861. 


116  LAW    OF    CIVIL    PROCEDURE. 

One  year  if  in  the  Philippines,  or  in  any  other  part  of  the  world  not 
herein  mentioned. 

ART.  556.  In  order  that  the  extraordinary  period  may  be  granted,  it 
is  necessary: 

1.  That  it  be  requested  within  the  three  days  following  that  on  which 
notice  of  the  ruling  is  served  which  orders  that  evidence  be  taken. 

2.  That  the  acts,  evidence  of  which  is  to  be  taken  outside  of  the  ter- 
ritory of  the  islands  of  Cuba  and  Porto  Rico  and  the  adjacent  ones, 
occurred  in  the  country  where  it  is  desired  to  procure  the  evidence. 

3.  That  when  the  evidence  to  be  taken  is  of  witnesses,  the  residences 
of  the  witnesses  to  be  examined  be  stated  in  addition  to  the  provisions 
prescribed  in  article  639. 

4.  That  there  be  stated,  in  case  the  evidence  to  be  taken  is  docu- 
mentary, the  archives  in  which  said  documents  are  recorded  from  which 
certificates  are  to  be. taken,  and  that  they  are  pertinent  to  the  action. 

ART.  557.  An  extraordinary  period  must  also  be  granted  even  if  the 
acts  occurred  within  the  islands  and  the  adjacent  ones,  if  the  witnesses 
who  are  to  testify  concerning  the  same  are  at  any  of  the  places  men- 
tioned in  article  555. 

In  this  case  the  names  and  residences  of  the  witnesses  must  be  stated 
in  the  petition. 

ART.  558.  The  petition  requesting  that  an  extraordinary  period  be 
granted  shall  be  referred  to  the  opposite  party  for  a  period  of  three 
days,  which  can  not  be  extended,  and  without  further  proceedings  the 
issue  shall  be  decided. 

ART.  559.  The  ruling  granting,  or  refusing  to  grant  the  extraordi- 
nary period,  may  be  appealed  from  for  a  review  only. 

ART.  560.  The  extraordinary  period  for  the  taking  of  evidence  shall 
commence  to  run  at  the  same  time  as  the  ordinary  period,  but  shall 
commence  to  be  counted  from  the  day  following  that  on  which  notice 
of  the  ruling  in  which  the  same  was  granted,  is  served. 

ART.  561.  The  litigant  to  whom  an  extraordinary  period  has  been 
granted,  and  who  does  not  take  the  evidence  designated,  shall  be 
adjudged  to  pay  to  his  adversary  an  indemnity  which  shall  not  be  less 
than  1,250  pesetas  nor  more  than  12,500  pesetas,  as  the  judge  taking 
cognizance  of  the  action  may  determine,  unless  it  should  appear  that 
the  said  party  was  not  to  blame  therefor,  or  unless  said  party  should 
waive  the  taking  of  said  evidence  before  the  expiration  of  the  ordinary 
period. 

This  indemnity  shall  be  imposed  in  the  final  judgment.1 

lrThe  imposition  of  a  fine  upon  the  party  who  has  secured  unjustly  the  grant  of 
the  extraordinary  period  for  the  taking  of  evidence,  is  not  sufficient  for  an  appeal  for 
annulment  of  judgment,  because,  in  addition,  this  measure  referring  to  procedure,  the 
fact  of  not  having  secured  the  evidence  by  the  faults  of  the  party  requesting  the  extraor- 
dinary period,  is  to  be  determined  by  the  court  passing  judgment. — Decision  of  March 
11,  1882. 


LAW    OF    CIVIL    PROCEDURE.  117 

ART.  562.  If  after  filing  the  replication  and  rejoinder  some  important 
fact,  material  to  the  decision  of  the  case,  should  occur,  or  if  any  like  fact 
of  prior  date  comes  to  the  knowledge  of  any  of  the  parties,  to  which 
they  swear  that  they  had  no  previous  knowledge,  they  may  allege  such 
facts  clearly  in  writing  during  the  first  period  designated  for  the  admis- 
sion of  evidence,  which  shall  be  called  a  supplementary  pleading.1 

ART.  563.  A  copy  of  the  supplemental  pleading  shall  be  given  to  the 
opposite  party,  in  order  that  within  the  three  days  following  its  delivery 
he  may  fully  admit  or  deny  the  fact  or  facts  therein  alleged. 

At  the  same  time  he  may  allege  other  facts  which  may  elucidate  or 
controvert  the  facts  set  forth  in  the  supplementary  pleading.2 

ART.  564.  The  evidence  submitted  shall  confine  itself  to  the  definite 
allegations  contained  in  the  replication  and  rejoinder,  or  to  those  con- 
tained in  the  complaint  and  answer,  and  in  those  of  the  supplementary 
pleading  in  a  proper  case,  which  have  not  been  fully  admitted  by  the 
party  prejudiced  thereby.3 

ART.  565.  Judges  shall  on  their  own  motion  reject  all  evidence  con- 
trary to  the  provisions  of  the  preceding  article,  and  all  other  evidence 
which  in  their  judgment  is  immaterial  or  impertinent.4 

ART.  566.  There  shall  be  no  remedy  whatsoever  against  the  deci- 
sions allowing  proceedings  for  the  taking  of  evidence. 

Against  decisions  refusing  the  taking  of  evidence  the  only  remedy 
shall  be  an  application  for  a  rehearing  if  interposed  within  five  days, 
and  if  the  judge  should  not  admit  it  the  interested  party  may  make  a 
similar  application  in  the  second  instance. 

ART.  567.  If  proceedings  for  the  taking  of  evidence  are  requested 
within  the  last  three  days  of  the  first  period,  the  opposite  party  may, 

1  Article  562  of  this  law  refers  alone  to  the  different  steps  in  a  cause,  and  its  violation 
can  not  give  rise  to  an  appeal  except  for  breach  of  form. — Decision  of  January  9, 1884. 

2  It  should  be  remembered  that  the  admission  of  evidence  in  the  second  instance 
can  be  granted  only  when  it  was  impossible  to  take  the  evidence  in  the  first  instance, 
owing  to  lack  of  time;  but  it  can  not  be  alleged  when  it  has  been  proposed  and  taken 
during  the  period  fixed  by  the  law  of  civil  procedure. — Decision  of  March  10,  1873. 

3  The  allegations  contained  in  the  answer  to  the  complaint  have  the  force  of  proof, 
because,  according  to  law,  one  party  is  relieved  of  the  necessity  of  proving  the  facts 
which  the  other  acknowledges  in  writing. — Decision  of  February  20,  1880. 

According  to  Law  I,  Title  XIV,  Partida  3,  and  repeated  decisions  of  the  Supreme 
Court,  evidence  as  to  the  facts  whose  truth  is  acknowledged  by  all  parties  is  unneces- 
sary;  and  the  defendant  having  consented  that  there  should  be  included  in  the  inven- 
tory of  an  estate  the  rents  of  certain  properties,  evidence  of  such  fact  is  not  necessary, 
and  the  judgment  absolving  the  defendant  because  the  plaintiff  did  not  prove  the 
same,  violates  the  aforementioned  law. — Decision  of  October  29,  1881,  and  October  17, 
1882. 

4  Evidence  that  can  not  be  taken  should  be  considered  impertinent,  and  of  this 
class  should  be  considered  that  which  has  for  its  object  the  taking  copies  of  several 
particulars  contained  in  preliminary  proceedings  or  causes,  provisionally  suspended, 
because  this  would  be  equivalent  to  violating  the  secrecy  of  the  preliminary  proceed- 
ings.— Derision  of  May  16,  1888. 


118  LAW    OF    CIVIL    PROCEDURE. 

within  the  three  days  after  a  copy  of  said  request  is  delivered  to  him, 
present  such  evidence  relating  to  the  same  facts  as  he  may  deem  proper. 

After  the  expiration  of  the  latter  period,  or  otherwise,  upon  the 
expiration  of  the  twenty  days  prescribed  in  the  second  paragraph  of 
article  552,  the  first  period  for  the  taking  of  evidence  shall  be  defi- 
nitely closed,  and  an  order  shall  be  made  opening  the  second  period.1 

AKT.  568.  Judges  shall  examine  all  documentary  evidence  submitted 
in  the  order  in  which  it  is  presented. 

They  shall  immediately  issue  compulsory  orders,  letters  rogatory, 
and  all  other  process  which  may  be  necessary  for  the  taking  of  evi- 
dence beyond  the  seat  of  the  judicial  district;  but  they  shall  not  be 
delivered  to  the  interested  party  until  after  the  decision  opening  the 
second  period  is  rendered,  and  until  after  the  clerk  shall  have  entered 
an  endorsement  upon  said  decision,  showing  the  period  granted  for  the 
taking  of  evidence  and  the  day  on  which  said  period  commences. 

ART.  569.  All  proceedings  for  the  taking  of  evidence,  including  that 
of  witnesses,  shall  be  public  after  a  citation  of  the  parties  twenty-four 
hours  in  advance,  the  litigants  and  their  attorneys  being  permitted  to 
be  present.2 

ART.  570.  The  party  to  whom  they  belong  shall  not  be  previously 
cited  to  appear  at  the  examination  of  the  books  and  papers  of  the  liti- 
gants. 

The  examination  of  documents  shall  always  be  made  in  the  pres- 
ence of  the  interested  party  or  of  a  member  of  his  family,  and,  in 
their  absence,  in  the  presence  of  two  witnesses,  residents  of  the  same 
town. 

ART.  571.  Notwithstanding  the  provisions  of  article  569,  the  judges 
may  order  that  such  evidence  as  would  produce  scandal,  or  offend  pub- 
lic morals,  be  taken  behind  closed  doors,  always  allowing  the  parties 
and  their  attorneys  to  be  present. 

ART.  572.  The  judge  shall,  at  a  reasonable  time  beforehand,  fix  a  day 
and  hour  for  the  taking  of  any  evidence  that  should  be  given  before 
him. 

ART.  573.  The  parties  may  designate  a  person  to  represent  them  at 
the  taking  of  evidence  beyond  the  place  of  the  residence  of  the  judge. 
This  appointment  shall  be  expressed  in  the  letters  requisitorial,  letters 
rogatory,  or  communication  addressed  for  that  purpose. 

In  such  case,  the  court  or  judge  to  whom  said  communication  is 
addressed,  «hall  appoint  a  day  or  hour  for  the  taking  of  said  evidence, 
and  shall  cite  the  person  or  persons  designated  to  appear,  if  they  be 
residents  of  that  place  or  have  entered  an  appearance. 

1  Against  these  decisions  no  appeal  shall  lie  except  an  application  for  a  rehearing, 
and  if  this  is  not  made  nor  advanced  in  the  second  instance,  an  appeal  for  annulment 
of  judgment  shall  not  be  allowed. — Decision  of  June  15,  1885. 

2  Evidence  must  be  taken  before  the  courts  and  according  to  the  formalities  pre- 
scribed by  law. — Decision  of  April  2,  1887. 


LAW    OF    CIVIL    PROCEDURE.  119 

ART.  574.  The  parties  and  their  attorneys  who  appear  at  the  pro- 
ceedings for  the  taking  of  evidence  shall  simply  attend  the  same,  and 
shall  not  intervene  therein  in  any  other  manner  than  that  prescribed 
for  each  class  of  evidence. 

Any  person  violating  this  rule  shall  be  admonished  by  the  judge, 
and  if  he  persist  in  his  disobedience  the  judge  may  deprive  him  of  his 
right  to  be  present. 

AET.  575.  A  separate  record  shall  be  made  of  the  evidence  of  each 
of  the  parties,  which  shall  afterwards  be  attached  to  the  main  record. 

ART.  576.  All  proceedings  for  the  taking  of  evidence  held  after  the 
expiration  of  the  second  period  prescribed  therefor,  shall  be  null  and 
void. 

SECTION  V. — Means  of  proof  . 

ART.  577.  The  means  of  proof  which  may  be  employed  in  an  action 
are  the  following: 

1.  Confession  in  court. 

2.  Formal  public  documents. 

3.  Private  documents  and  correspondence. 

4.  Commercial  books  kept  as  prescribed  in  section  2,  title  2,  book  1, 
of  the  Code  of  Commerce.1 

5.  Opinions  of  experts. 

6.  Judicial  examination. 

7.  Witnesses.2 

§  1. — Confession  in  court. 

ART.  578.  From  the  time  the  action  is  submitted  for  the  taking  of 
evidence  until  the  citation  for  judgment  in  the  first  instance,  every 
litigant  is  obliged  to  make  his  statement  under  oath  when  the  opposite 
party  requires  it. 

This  shall  be  understood  without  prejudice  to  the  provisions  of 
number  1  of  article  496. 3 

ART.  579.  These  statements  may  be  made  at  the  election  of  the 
party  requesting  them,  under  a  decisory  or  indecisive  oath. 

1  This  reference  is  to  the  old  code.     The  code  in  force  treats  of  the  subject  men- 
tioned in  the  present  article,  in  Title  III  of  Book  I  (articles  33  to  49,  inclusive) . 

2  It  can  not  be  said  that  article  577  of  this  law  or  article  42  of  the  Code  of  Com- 
merce is  violated,  when  the  judgment  is  not  based  alone  on  the  evidence  taken  from 
the  commercial  books  which  lack  some  of  the  legal  requisites  in  order  to  be  admitted 
as  conclusive  evidence. — Decision  of  January  9,  1884. 

3  The  confession  made  in  court  must  be  related  to  the  other  replies  given  by  him 
who  confesses,  and  also  with  all  the  other  evidence. — Decision  of  November  12,  1884. 

The  adjudging  chamber  is  authorized  to  weigh  the  evidence  as  it  may  deem  proper, 
but  can  not  pass  it  by  or  deny  it. — Decision  of  March  26,  1889. 


120  LAW    OF    CIVIL    PROCEDUEE. 

Iii  the  first  case  said  testimony  shall  be  considered  full  proof  even 
though  there  be  additional  evidence. 

In  the  second  case  it  shall  prejudice  only  the  person  who  testifies.1 

ART.  580.  The  interrogatories  shall  be  in  writing,  stated  with  clear- 
ness and  precision  in  the  affirmative  sense,  and  must  be  confined  to 
facts  pertinent  to  the  issue. 

The  judge  shall,  ex  officio,  reject  all  questions  not  possessing  these 
requisites. 

No  copy  of  the  interrogatories  shall  be  attached  to  the  original. 

ART.  .581.  The  person  interested  may  present  his  interrogatories  in 
a  sealed  envelope,  which  the  judge  shall  keep  unopened  until  ap- 
pearance is  made  to  reply  thereto. 

The  presentation  of  the  interrogatories  may  be  delayed  until  appear- 
ance is  made  to  reply  thereto,  a  request  being  made  to  cite  the  party 
whose  testimony  is  required,  to  appear  for  that  purpose. 

ART.  582.  The  judge  shall  fix  the  day  and  hour  upon  which  the  par- 
ties shall  appear  for  the  purpose  of  answering  the  interrogatories. 

The  person  who  is  to  testify  shall  be  cited  at  least  one  'day  before 
the  hearing. 

If  he  fails  to  appear  or  show  good  cause  for  nonappearance,  he  shall 
again  be  cited  to  appear  at  another  stated  day  and  hour,  with  the 
admonition  that  if  he  does  not  then  appear,  his  absence  shall  be  taken 
as  a  confession. 

ART.  583.  At  the  time  of  the  appearance  the  judge  shall  decide  on 
the  admission  of  the  questions,  whether  presented  under  sealed  cover  or 
at  the  time  of  the  appearance,  and  shall  then  proceed  to  the  exam- 
ination of  the  party  who  is  to  answer  thereto  upon  each  question 
admitted. 

ART.  584.  The  witness  shall  personally  answer  viva  voce  in  the 
presence  of  the  opposite  party  and  his  attorne}^,  if  attending. 

The  witness  can  not  make  use  of  any  prepared  draft  of  his  replies, 
but  he  shall  be  permitted  to  consult  at  the  time  simple  notes  or  memo- 
randa, when,  in  the  opinion  of  the  judge,  they  may  be  necessary  to 
refresh  his  memory. 

ART.  585.  The  answers  must  be  affirmative  or  negative,  the  witness 
being  permitted  to  make  such  explanations  as  he  may  deem  proper  or 
those  which  the  judge  may  request. 

If  he  refuses  to  testify,  the  judge  shall  admonish  him  at  once  that  if 
he  refuses  to  answer  it  shall  be  taken  as  a  confession  on  his  part. 

If  the  answers  should  be  evasive,  the  judge  shall,  ex  officio  or  at  the 
instance  of  the  opposite  party,  likewise  admonish  him  that  the  facts 

1  Confession  in  court  made  with  all  necessary  requisites  constitutes  full  proof  against 
him  who  makes  the  same. — Decision  of  November  18,  1886. 


inst 


LAW    OF    CIVIL    PROCEDURE.  121 

about  which  he  refuses  to  give  categorical  or  direct  answers  shall  be 
accepted  as  confessed.1 

ART.  586.  A  witness  may  refuse  to  answer  a  question  when  it  refers 
to  a  fact  of  which  he  has  no  personal  knowledge. 

Only  in  such  a  case  uiay  interrogatories  be  answered  by  a  third  per- 
son having  personal  knowledge  thereof,  by  reason  of  having  acted  on 
behalf  of  the  person  interrogated,  if  the  latter  should  request  it,  and 
accepts  the  liability  therefor. 

ART.  587.  If  the  party  proposing  the  interrogatories  should  be  pres- 
ent at  the  time  the  testimony  is  taken,  both  parties  may  reciprocally 
and  in  person,  without  the  intervention  of  their  attorneys  or  solicitors, 
and  through  the  judge,  ask  each  other  such  questions  and  make  such 
remarks  as  the  judge  may  deem  proper  for  discovering  the  truth  of 
the  facts,  but  without  interrupting  each  other. 

The  judge  may  also  request  such  explanations  as  he  may  deem  con- 
ducive to  this  end. 

ART.  588.  The  clerk  shall  make  a  record  of  the  proceedings,  in  which 
shall  be  inserted  the  testimony  given,  which  may  be  read  by  the  per- 
son giving  the  same.  Otherwise  the  clerk  shall  read  it,  the  judge  then 
asking  said  witness  if  he  ratines  said  testimony,  or  whether  he  has 
anything  to  add  or  change;  his  statements  shall  then  be  added  to  the 
proceedings,  after  which  they  shall  be  signed  by  the  witness,  if  he  is 
able  to  do  so,  and  by  the  judge  and  the  others  present,  and  shall  be 
certified  to  by  the  clerk. 

ART.  589.  When  two  or  more  litigants  are  required  to  answer  to 
the  same  interrogatories,  the  judge  shall  adopt,  if  the  person  interested 
requests  it,  the  precautions  necessary  to  prevent  them  from  having 
any  communication  with  each  other,  or  advise  each  other  beforehand 
as  to  their  contents. 

ART.  590.  If,  on  account  of  the  illness  of  the  litigant  or  other  special 
circumstances,  he  can  not  appear  to  answer  the  interrogatories,  the 
judge  may,  if  he  deems  it  proper,  go  to  the  house  of  said  litigant, 
together  with  the  clerk,  in  order  to  take  his  evidence. 

In  such  a  case  the  opposite  party  can  not  be  present;  but  he  may 
examine  the  testimony,  and  may  request  that  within  three  days  a 
^examination  be  made  in  order  to  elucidate  some  doubtful  point 
with  regard  to  which  no  categorical  answer  had  been  given. 

ART.  591.  A  litigant  residing  within  the  judicial  district  may  be 

1  The  provisions  of  the  law  of  civil  procedure  with  reference  to  considering  as  con- 
fessed the  litigant  who  refuses  to  reply  to  questions,  is  applicable  in  an  ordinary 
action  as  well  as  in  an  issue  of  poverty. — Decision  of  February  IS,  1870. 

The  "cognoscencia"  to  which  Law  2,  Title  13,  of  Partida  3  gives  and  attributes  the 
value  of  full  proof  is  the  judicial,  explicit,  and  absolute  confession;  but  not  that 
which  is  limited  to  but  one  part  of  the  complaint,  denying  at  the  same  time  the 
validity  of  the  remainder,  which  in  a  particular  manner  constitutes  the  essential 
basis  of  the  alleged  action  or  exception  pleaded, — Decision  of  June  22,  1878. 


122'  LAW    OF    CIVIL    PROCEDURE. 

obliged  to  appear  before  the  judge  taking  cognizance  of  the  cause,  in 
order  to  give  his  testimony,  unless,  in  the  opinion  of  said  judge,  there 
is  a  good  cause  which  prevents  him  from  so  doing. 

In  such  case,  as  well  as  when  he  lives  beyond  the  judicial  district,  he 
shall  be  examined  by  means  of  a  commission  or  letters  rogatory,  to 
which  shall  be  attached  the  interrogatories,  after  being  approved  by 
the  judge,  and  inclosed  in  a  sealed  envelope,  which  shall  be  opened  at 
the  time  of  taking  the  declaration. 

ART.  592.  If  the  person  whose  declaration  is  to  be  taken  does  not 
appear  upon  the  second  citation  without  giving  a  good  cause  for  his  non- 
appearance,  or  if  he  refuses  to  testify,  or  answer  either  affirmatively 
or  negatively,  notwithstanding  the  admonition  addressed  to  him,  such 
action  may  be  considered  as  a  confession  in  the  final  judgment. 

ART.  593.  New  interrogatories  can  not  be  demanded  concerning  facts 
which  have  alread}T  been  the  object  of  previous  ones. 

Neither  can  such  deposition  be  demanded  more  than  once  by  either 
party  after  the  expiration  of  the  period  for  the  admission  of  evidence. 

ART.  594.  In  actions  in  which  the  State  or  any  corporation  thereof 
is  a  party,  the  public  prosecutor,  or  the  person  representing  said 
party,  shall  not  be  required  to  testify.  In  lieu  thereof,  the  opposite 
party  may  submit  in  writing  the  questions  he  may  desire  to  ask,  which 
shall  be  answered  by  means  of  a  report  prepared  by  the  employees  of 
the  administration  having  knowledge  of  the  facts. 

These  communications  shall  be  addressed  through  the  person  who 
represents  the  State  or  corporation,  who  is  obliged  to  file  the  answer 
within  the  period  which  the  judge  may  fix. 

§  2. — Public  documents. 

ART.  595.  Under  the  name  of  formal  public  documents  are  included: 

1.  Public  instruments  drafted  according  to  law. 

2.  Certificates  issued  by  exchange  and  commercial  brokers,  of  entries 
contained  in  the  record  of  their  respective  transactions  in  the  manner 
and  with  the  formalities  prescribed  by  article  64  of  the  Code  of  Com- 
merce and  by  spcial  laws.1 

1  This  reference  is  evidently  to  the  old  Code  of  Commerce,  and  the  code  at  present 
in  force  contains  the  following: 

Art.  93.  The  licensed  agents  shall  have  the  character  of  notaries  in  all  that  refers 
to  the  negotiation  of  public  instruments,  industrial  and  commercial  securities,  mer- 
chandise, and  the  other  commercial  acts  included  in  their  office  in  the  respective 
center. 

They  shall  keep  a  registry  book  in  accordance  with  the  prescriptions  of  article  36, 
entering  therein  in  proper  order,  separately  and  daily,  all  the  transactions  in  which 
they  may  have  taken  part,  being  moreover  permitted  to  keep  other  books  with  the 
same  formalities. 

The  books  and  policies  of  licensed  agents  shall  be  admitted  as  evidence  in  suits. — 
Code  of  Commerce  in  force  in  Cuba,  Porto  Rico,  and  the  Philippines. 

See  in  addition  article  58  of  the  Code  of  Commerce  in  force,  and  also  number  2  of 
article  596  of  the  present  law. 


LAW    OF    CIVIL    PROCEDURE.  123 

3.  Documents  issued  by  public  officials  who  are  authorized  to  issue 
the  same  in  the  exercise  of  their  official  duties. 

4.  Record  books,  by-laws,  ordinances,  registers,  poll  and  property 
statistics,  and  other  documents  in  public  archives  or  depending  on  the 
State,  provinces,  or  towns,  and  copies  made  and  authenticated  by  the 
secretaries  and  archivists,  by  order  of  the  proper  authorities. 

5.  The  ordinances,  by-laws,  and  regulations  of  companies,  corpora- 
:ions,  or  associations,  providing  they  have  been  approved  by  public 
authority,  and  copies  certified  to  in   the  manner  prescribed  in  the 
foregoing  number. 

6.  Records  of  certificates  of  births,  marriages,  and  deaths  taken  from 
the  registers  by  the  parish  priests,  or  by  the  persons  in  charge  of  the 
civil  registers. 

7.  Writs  of  execution  and  all  kinds  of  judicial  proceedings.1 

1  Instruments  transferring  ownership  can  not  be  admitted  or  have  any  effect  in  a 
cause  unless  registered  in  the  registry  of  property. — Decision  of  October  22,  1857. 

Copies  of  records  issued  by  parish  priests  may  be  questioned  for  lack  of  due  form. — 
Decision  of  September  10,  1864. 

When  a  decision  is  rendered  absolving  a  defendant  owing  to  the  fact  that  the  docu- 
ments presented  by  the  plaintiff  were  not  recorded  in  the  registry  of  property,  the 
case  may  be  opened  again  with  reference  to  the  same  subject  after  the  defects  con- 
tained in  the  documents  have  been  cured  without  an  exception  of  res  judicata  being 
permissible. — Decision  of  December  27,  1869. 

In  giving  more  value  to  a  will,  in  which  a  child  is  declared  and  acknowledged  as  a 
natural  child  of  the  testator  and  the  same  is  constituted  heir,  than  to  the  baptismal 
register,  in  which  it  appears  that  the  child  is  the  natural  child  of  another,  is  not  a 
violation  of  the  law  of  civil  procedure. — Dt'rixion.  of  January  14,  1873. 

The  law  of  civil  procedure  only  indicates  the  means  of  proof  which  the  litigants 
may  employ  in  a  cause,  and  defines  those  included  under  the  name  of  formal  public- 
documents  without  specifying  as  to  their  intrinsic  efficacy  compared  with  others. — 
Dwixion  of  December  31,  1877. 

All  the  documents  which  in  the  last  century  were  issued  in  the  territory  of  Ma- 
llorca  without  the  formalities  required,  by  the  Norixhna  Recopilacion,  Law  1,  Title  23, 
Book  10,  were  and  are  valid  according  to  the  custom  which  obtained  in  said  place 
and  at  that  time  and,  by  virtue  of  which,  they  are  of  force  both  within  and  out  of 
court. — Decision  of  February  20,  187 '8. 

The  decisions  which  declare  a  right,  although  with  the  clause  "without  prejudice 
to  a  third  person,"  may  be  an  element  of  proof  which  may  be  employed  by  those 
who  were  not  parties  to  said  cause. — Decision  of  June  28,  1882. 

Although  the  baptismal  registries  are  public  documents,  their  value  as  evidence 
docs  not  go  beyond  proving  the  act  itself,  and  does  not  prove  others,  which  must  be 
proven  by  other  evidence. — Decision  of  April  3,  1884- 

Opinions  submitted  by  experts  in  a  cause  do  not  have  the  character  of  a  public 
document. — Decision  of  October  1,  1884. 

With  reference  to  number  2  of  this  article,  see  articles  36,  93,  102,  and  103  of  the 
Civil  Code  in  force. 

When  it  is  impossible  to  present  or  find  certain  parish  registers,  the  court  may  form 
its  judgment  on  the  strength  of  the  ones  presented,  or  from  other  evidence. — Decision 
of  October  10,  1889. 

The  certificate  given  by  the  director  of  an  asylum  or  hospital  forthe  insane,  stating 


124  LAW    OF    CIVIL    PROCEDURE. 

ART.  596.  In  order  that  formal  public  documents  be  valid  in  an 
action,  the  following  rules  must  be  observed: 

1.  When  presented  in  an  action  without  citation  served  upon  the 
opposite  party,  they  must  be  compared  with  the  originals  prior  to  said 
citation,  if  their  authenticity  or  exactness  is  questioned  by  the  party 
prejudiced  thereby.     Otherwise  they  shall  be  considered  genuine  and 
effective  without  the  necessity  of  such  comparison. 

2.  When  they  are  to  be  included  in  the  record  in  accordance  with 
the  provisions  of  article  504,  or  in  the  cases  mentioned  in  article  505, 
they  must  be  issued  by  virtue  of  a  compulsory  order  made  therefor 
after  the  party  prejudiced  thereby  has  been  cited  to  appear. 

3.  That  if  the  certificate  requested  should  be  but  a  part  of  a  docu- 
ment, there  be  added  thereto  the  part  the  opposite  party  may  request, 
should  he  deem  it  proper. 

Such  request  shall  be  made  at  the  time  the  certified  copy  is  issued, 
and  the  party  requesting  the  same  shall  pay  the  added  cost  thereof, 
without  prejudice  to  what  may  finally  be  decided  as  to  the  payment  of 
costs. 

4.  The  transcripts  or  certified  copies  must  be  furnished  by  the  cus- 
todian of  the  archives,  office,  register,  or  protocol  in  which  the  docu- 
ments are  filed,  or  by  the  clerk  in  charge  of  the  judicial  records,  or 
otherwise  by  the  clerk  of  the  court  before  which  the  action  is  pending. 

Such  transcripts  and  certified  copies  shall  be  issued  under  the  official 
liability  of  the  custodians  of  the  originals,  and  the  intervention  of  the 

that  a  certain  person  had  been  admitted  thereto  on  a  certain  day  and  died  there,  is 
only  valid  in  a  cause  to  prove  what  is  stated,  that  is,  the  fact  that  the  person  men- 
tioned in  the  certificate  remained  in  the  asylum  for  the  insane  the  time  mentioned,  and 
although  from  this  fact  the  presumption  of  insanity  arises,  in  order  to  be  duly  con- 
sidered, it  should  be  supported  by  special  and  direct  proof. — Decision  of  February 
14,  1863: 

After  the  parish  priests  issue  copies  of  their  registers,  their  functions  cease,  and  the 
contents  of  said  copies  cannot  be  altered  except  by  order  of  the  competent  legal 
authority. — Decision  of  April  16,  1864. 

The  facts  which  were  formerly  proven  by  the  parish  registers  are  now  proven  by 
a  certificate  of  the  civil  register;  and  have  been  since  the  law  of  June  17,  1870,  which 
is  in  harmony  with  the  civil  code. 

Law  5,  title  xxiv,  book  10  of  the  Novisima  Recopilacidn  is  violated  when  con- 
tracts contained  in  public  instruments  are  not  given  preference  over  those  contained 
in  private  documents,  although  the  latter  be  written  on  stamped  paper. — Decision  of 
November  21,  1872. 

The  certificate  issued  with  reference  to  the  poll  of  residents  of  a  town  in  order  to 
prove  that  the  plaintiff  was  a  servant  of  the  person  alleged  to  have  employed  her, 
and  who  makes  claim  for  wages,  does  not  prove  that  there  was  any  contract  between 
them,  for,  according  to  the  practice  established  by  the  supreme  court,  the  documents 
of  the  class  to  which  said  certificate  belongs  only  proves  the  fact  of  the  record  and  in 
no  manner  whatsoever  the  statement  or  claims  contained  therein  with  reference  to 
prior  and  distinct  acts. — Decision  of  October  14,  1882. 


ice  to 


uu 

H 


LAW    OF    CIVIL    PROCEDURE.  125 

parties  in  interest  shall  be  limited  to  designate  what  is  to  be  transcribed 
oi1  certified  to,  and  to  be  present  at  the  comparison  thereof.1 

ART.  597.  The  following  documents  shall  be  valid  without  compa- 
rison, reserving  contradictory  evidence  and  the  provisions  of  article 
006: 

1.  Writs  of   execution  and  certified  copies  or  transcripts  of  final 

dgments,  issued  in  legal  form  by  the  court  making  the  same. 

'2.  Ancient  public  documents  which  ;ire  not  of  record  and  all  those 
whose  protocol  or  original  may  have  disappeared. 


1The  violation  of  this  article  is  not  a  sufficient  ground  for  an  appeal  for  annulment 
of  judgment. — Decision  of  October  18,  1882. 

Article  596  of  the  law  is  not  violated  when  the  authenticity  or  exactness  of  some 
documents  has  not  been  questioned  formally  and  in  due  time. — Decision  of  October  8, 
1885. 

According  to  the  doctrine  admitted  in  practice  no  document  can  be  made  a  public 
instrument  without  the  citation  of  the  persons  interested  who  may  be  prejudiced 
thereby,  or  without  a  judicial  order  in  a  proper  case. — Decision  of  June  12,  1882, 

Although  it  is  true  that  according  to  law  114,  Title  XVIII,  part.  3,  public  instru- 
ments are  valid  as  evidence  in  suits,  they  do  not  legalize  contracts  made  contrary  to 
other  laws. — Di'cix'mn  of  A/>r!l  9,  1881. 

This  article  does  not  determine  the  legal  value  of  the  documents  which  the  par- 
ties may  present  in  an  action,  but  their  efficacy  by  reason  of  the  form  in  which  they 
have  been  presented. — Decision  of  February  15,  3864. 

There  is  no  difference  between  the  first  or  subsequent  copies  of  public  instruments 
unless  a  first  copy  being  in  question  the  comparison  requested  with  the  original  can 
not  be  made  because  the  latter  has  been  lost. — Decision  of  June  8,  1866,  and  May  24, 
1860. 

According  to  the  spirit  of  law  2,  Title  XVI,  Book  X  of  the  Novisima  Recopilacl6n, 
in  the  event  of  the  registries  and  protocols  having  been  lost,  full  faith  and  value 
should  be  given  to  the  first  copy  of  a  public  document  taken  from  the  true  original 
by  the  same  notary  who  authorized  it  when  falsity  or  any  defect  other  than  the  lack 
of  verification  or  comparison  is  not  alleged.—  Decision  of  January  26,  1866. 

In  order  that  public  documents  be  valid  in  a  cause,  it  is  not  sufficient  that  they 
have  been  drafted  according  to  the  prescriptions  of  law  114,  Title  XVIII,  Partida  3, 
but  it  is  also  necessary  according  to  article  281  of  the  law  of  civil  procedure,  that 
those  which  have  been  presented  in  a  cause  without  citation  be  compared  with  the 
originals,  unless  the  person  who  may  be  prejudiced  thereby  has  given  his  express 
consent,  or  their  authenticity  is  proven  by  other  means. — Decision  of  November  15, 
1880,  nu<\  \oinnlM-r  2,  1883. 

Article  281  of  the  law  of  1855  did  not  require  a  comparison  when  the  document 
was  presented  by  express  consent,  and  article  597  of  the  law  of  1881  only  requires 
the  comparison  when  its  authenticity  or  exactness  had  been  expressly  questioned. 
Therefore,  as  formerly  express  consent  was  necessary,  now  an  implied  consent  is 
sufficient. 

Letters  signed  by  the  hand  of  a  notary  public  with  the  formalities  and  other 
requisites  of  law  114,  Title  XVIII,  Partida  3,  are  complete  evidence  of  ownership,  if 
there  is  no  doubt  as  to  their  authenticity  and  they  contain  no  erasures  which  would 
invalidate  them  according  to  other  laws  of  the  title  and  partida  cited. — Decision 
of  March  16,  1878,  January  22,  1878,  and  April  29,  1878. 


126  LAW    OF    CIVIL    PROCEDURE. 

3.  Any  other  formal  public  document  which  by  its  nature  has  no 
original  or  recorded  copy  with  which  it  may  be  compared.1 

ART.  598.  The  comparison  or  verification  of  public  documents  with 
their  originals  shall  be  made  by  the  clerk,  who  must  go  for  the  pur- 
pose to  the  archives  or  place  where  the  original  is  kept,  the  day  and 
hour  being  previously  determined,  and  perform  his  duty  in  the  pres- 
ence of  the  parties  and  their  attorneys,  should  they  attend. 

The  judge  may  also  in  person  make  a  comparison,  if  he  considers  it 
proper.2 

ART.  599.  Documents  executed  in  other  countries  shall  have  the 
same  validity  in  an  action  as  those  executed  in  Spain,  providing  they 
possess  the  following  requisites: 

1.  That  the  subject  matter  of  the  act  or  contract  be  lawful  and  per- 
mitted under  the  laws  of  Spain. 

2.  That  the  contracting  parties  have  legal  power  and  capacity  to 
contract  according  to  the  laws  of  their  own  country. 

3.  That  in  the  execution  thereof  all  formalities  and  requirements 
prescribed  in  the  country  wherein  the  acts  or  contracts  were  made 
have  been  observed. 

4.  That  the  document'  be  legalized  and  possess  the  other  requisites 
necessary  to  prove  its  authenticity  in  Spain. 

ART.  600.  To  every  document  drafted  in  any  language  other  than 
Spanish  there  shall  be  accompanied  a  translation  thereof,  and  copies 
of  both  the  original  and  translation. 

Said  translation  may  be  made  privately,  in  which  case,  if  any  of  the 
parties  question  it  within  three  days,  stating  that  he  does  not  consider 
it  a  true  and  faithful  translation,  the  document  shall  be  transmitted 
for  translation  to  the  official  in  charge  of  this  service  in  the  general 
government  in  the  islands  of  Cuba  and  Porto  Rico,  respectively,  and 
should  there  be  none,  to  the  colonial  department  through  the  respec- 

1  The  fact  of  not  having  executed  an  instrument  on  the  proper  stamped  paper  does 
not  affect  its  quality  or  validity. — Decision  of  May  26,  1867. 

2  The  ruling  which  denies  the  admission  of  documents  in  certain  proceedings  is  not 
final.—  Decision  of  April  6,  1885. 

The  act  of  comparing  certain  obligations  with  the  stub  book  from  which  they 
were  taken,  is  merely  preparatory  to  the  final  judgment  and  is  not  a  proceeding  for 
the  taking  of  evidence,  which  gives  rise  to  an  appeal  for  annulment  of  judgment 
when  denied. — Decision  of  November  4,  1885. 

With  reference  to  documents  issued  in  a  foreign  country,  consult  the  royal  decree 
of  October  17,  1851,  and  article  35  of  the  royal  decree  of  November  17,  1852,  with 
reference  to  aliens.  The  treaties  which  the  Spanish  Government  has  celebrated  with 
other  countries  should  also  be  consulted. 

When  the  documents  which  come  from  abroad  are  forwarded  by  vice-consuls  or 
consular  agents  who  do  not  correspond  directly  with  the  Secretary  of  State  they 
should  also  be  signed  by  the  head  of  the  legation  or  the  respective  consul. — Circular 
of  June  7,  1859,  to  which  reference  is  made  in  the  decision  of  June  30,  1866. 


LAW    OF    CIVIL    PROCEDURE.  127 

live  governor-general,  in  order  that  it  be  translated  by  the  bureau  of 
translations. 

§3. — Private  documents,  correspondence,  and  books  of  merchants.1 

ART.  601.  The  original  private  documents  and  correspondence  in 
the  possession  of  the  litigants  shall  be  presented  and  attached  to  the 
records. 

When  they  form  part  of  a  book,  proceedings,  or  package,  the  whole 
thereof  shall  be  exhibited  in  order  that  certified  copies  of  such  parts 
as  the  persons  interested  may  designate  may  be  made  therefrom. 

The  same  method  shall  be  observed  with  regard  to  documents  in  the 
possession  of  a  third  person  who  declines  to  allow  them  to  leave  his 
possession.2 

1  See  articles  1225  to  1230  of  the  Civil  Code. 

According  to  laws  114  and  119,  Title  XVIII,  Partida  3,  for  the  validity  and  force  in 
action  of  private  documents,  the  testimony  of  witnesses  most  be  taken  after  the  docu- 
ments have  been  submitted,  even  of  those  who  attended  the  proceedings  and  whose 
names  appear  in  the  documents, — Decision  of  February  8,  1858. 

Law  119,  Title  XVIII,  Partida  3,  which  does  not  consider  sufficient  proof  the  com- 
parison of  a  private  document  with  others  of  undoubted  validity  to  show  the  authen- 
tic character  of  the  former,  refers  to  the  case  wherein  the  one  who  signed  it  afterwards 
denies  it. — Decision  of  May  9,  1863. 

Although  a  private  document  has  not  in  itself  legal  validity  to  prove  the  transfer 
of  ownership  of  real  estate,  according  to  law  114,  Title  XVIII,  Partida  3,  which 
requires  for  this  class  of  contracts  the  execution  of  a  public  instrument,  said  law  can 
not  be  considered  violated  by  a  judgment  which  gives  weight  to  such  a  private  doc- 
ument when  the  truth  of  its  contents  has  been  proven  by  the  acknowledgment  of 
the  vendor  and  that  of  the  witnesses  who  took  part  in  its  execution. — Decision  of 
January  28,  1865. 

Private  documents  are  evidence  against  the  subscriber  thereof  when  he  acknowl- 
edges the  same,  as  provided  by  law  119,  Title  XVIII,  Partida  3.  This  doctrine, 
however,  is  not  applicable  to  dowry  instruments  when  they  prejudice  a  third  person, 
in  which  case  the  delivery  of  the  dowry  must  be  proven  in  another  manner,  aside 
from  the  simple  admission  of  the  husband  that  he  received  it. — Decision  of  June  20, 
1865. 

Only  in  treating  of  the  comparative  value  of  a  private  document  as  against  a  public 
document  is  law  31,  Title  XIII,  Partida  5,  applicable. — Decision  of  June  20,  1865. 

In  order  that  private  documents  be  valid  against  those  who  wrote  them  or  who 
ordered  them  written,  they  must  be  acknowledged  by  their  authors  or  it  must  be 
proven  that  they  were  made  at  their  orders,  as  prescribed  in  law  114,  Title  XVIII, 
Partida  3. 

Credit  entries  in  books  made  from  memory  can  not  prejudice  the  person  who  did 
not  make  or  authorize  them  to  be  made,  according  to  law  121  of  the  above-mentioned 
title  and  code. — Decision  of  June  1%,  1867. 

Law  4,  Title  XXVIII,  Book  XI,  of  the  Novisima  Recopilacion  is  repealed  by  the 
Law  of  Civil  Procedure,  and  although  article  1429  of  said  procedure  contains  the  same 
provision,  it  should  be  remembered  that,  according  to  the  express  declaration  of  the 
Supreme  Court  the  legal  value  of  private  documents  acknowledged  before  a  judicial 
authority  gives  them  no  more  weight  and  virtue  in  ordinary  causes  than  that  which 


IkJS  LAW     OK    CIVIL     I'KoCKDUltK. 

AKT.  <)()WJ.  Persons  nol,  parties  to  an  action  shall  not  be  compelled  to 
exhibit  pri\  ate  documents  belonging  exelusivoly  to  1  hem,  reserving  the 
rio-ht  of  (lie  pel-son  needing  the  same,  which  he  ma\  exercise  in  (he 
proper  action. 

If  said  persons  are  disposed  to  exhibit  them  voluntarily,  they  shall 
not  he  compelled  to  present  them  at  the  clerk's  ollice,  and  if  they 
request  it,  the  clerk  shall  o-0  to  their  residences  or  otlices  to  make 
certified  copies  thereof.  ' 

AKT.  <'»<>:>.    Private  documents  and  correspondence  shall  he  acknowl 
edevd  or  denied  under  oath  before  the  jiid^e  by  the  person   prejudiced 
therein,  if  requested  hy  the  opposite  party. 

Such    acknowledgment    shall  not    he    necessary  if   the    person    preju 
diced  l>\  said  document  shall  have  acknowledged  its  authenticity  in  his 
answer,  replication,  or  rejoinder. 

AKT.  <i(M.  When  commercial  hooks  are  to  he  employed  as  evidence, 
the  provisions  of  articles  ;M  and  ;VJ  of  the  Code  of  Commerce  shall  he 
observed,  and  they  shall  he  exhibited  at  the  place  of  business  or 
otliee  where  such  hooks  are  kept.  " 

of  right  belongs  to  them  when  questioned  by  a  third  person.—  /><•<•/*/«//  n/./un,  is, 


Law  119,  Title  XVIII,  Partida  3,  in  so  far  as  it  relates  to  the  supplrtoi  -\  |.n.«»t  ..! 

|iriv:ilr  (li.ciniiciits,  \\hrii  not  :ick  im\\  l«-.|^i-.l  I  »\  t  lie  JMTSI  ui  \vli<»  ••xrcutrd  the  same, 
iH  ivpeilletl  hyllie  l,;i\\  ol'('i\il  I'l'oeei  lure,  :in»l  i  u  such  ease  ;i  ny  <  if  I  lie  means  of  proof 
:iul  hori/ed  l>y  I  lie  hitler  IIIMV  I  >e  eiuployet  I,  for  I  he  purpose  of  pj-ovin^  I  he  le^ilinuiey 
of  the  (loeuiueiit  Mild  t  he  e\  isleiiee  of  I  he  eoiit  rMet  eoiitMiued  in  the  SMine.  /'<  'cifdon 
.;/'  I>,r,-mh,ra7t  1881. 

A  pri\'Mle  document  CMII  product-  no  effeel  in  M  i-iuse  in  \\  Inch  HUM  I  ruling  IIMS  heeu 
rendered  declaring  it  not  Mdmissihle.-  -Itfcisinii  of  .\ornnlnT  /;>,  /\,v^. 

l'ri\  Mle  documents  are  valid  whose  falsity  has  not  been  questioned  when  IheMllesl- 
intf  wit  nesses  who  subscribed  llu'suiiKMit  their  execution  acknowledge  them,  even  when 

one  of   those  \\  ho  executed  (he  SMine  IIIMV  IIM\C  died.       D<-<-ixnni  «l'  (><•/<>/><  r    ',   /.v.V.V,  and 

December  St  1889. 

'Tho  syndics  MS  representatives  in  li;inkruptc\  proceedings  ami  of  the  haidcrupt 
IIMVC  I  he  rii.dil,  iu  the  discharge  of  I  heir  duties,  to  request  t  he  iiece.-sMi  \  .l:itM«>t  per- 
sons or  of  judicial  entities  with  \\  horn  the  kmknipt  m:iy  IIM\C  Ii:id  husiness  relations. 

Articles  (>OL'  and  (>().'{  of  ihei.M\\  .»f('i\ii  procedure  MIV  not  applicable  when  treating 

of  niercliMiils  uith  regard  to  \\hom  the  speciMl  pr«>\  isions  of  Mrticle  'Jl  of  the  Code  of 
Commerce  urc  applicable.  l><-cixh»i  of  l><  -rniilx-r  .'<>,  /.v.v.v. 

"The  !M\\  in  force  mentioned  in  this  Mrticle  are  articles  •!;">  to  I!  >  of  the  (  'ode  of  (  'om- 
merce  of  1SS.").  l),-<-ixitni  <>/  I  ><,rnt/>,  r  .'»,  /.v.v.v. 

The  articles  referred  to  in  t  he  forego  ing  decision  MIV  MS  follows: 

AIM.  I').  No  otliciMl  inquiry  can  I  Hi  instituted  hy  judges  or  courts  uor  any  Mill  hority 
in  tinier  to  ascertain  if  merchants  keep  their  hooks  in  accordance  with  the  provisions 
of  this  eotle,  nor  any  .ueneral  iu\  estimation  or  examination  ot  the  bookkeeping  ni  (he 
otlices  or  counting  houses  of  merchants. 

AIM-.  Hi.  Neither  CMII  the  genera  I  communication,  delivery,  or  inspection  of  Hie 
l)o..  Us,  correspondence,  and  any  other  documents  of  men-hauls  l»e  decreed  at  the 
instance  of  a  |>arty,  except  in  case  of  liqnid:ition,  um\ersMl  heirshi|>,  or  lianUruptcy. 

AIM  17  With  the  exception  of  the  cases  menhonetl  in  the  foregoing  article,  the 
e\hil»ilion  of  the  hooks  ami  documents  ot  merchants  can  only  In-  decreed,  .it  the 


LAW    OK    CIVIL    PROCEDURE.  129 

§  4. — Comparison  of  handiurtthiy. 

AKT.  oor,.  Comparison  of  handwriting  may  always  be  requested 
whenoN -or  its  genuineness  is  denied  by  the  person  prejudiced  thereby, 
or  when  a  doubt  is  raised  us  to  the  authenticity  of  any  private  or  pub- 
lic document,  an  original  of  which  docs  not  exist,  and  which  can  not  be 
verified  by  the  ollicial  who  issued  the  same.  Said  comparison  shall  be 

istonce  of  a  party,  of  oHicially,  when  tin-  person  requesting  it  haw  any  interest  or 

liability  in  the  question  in  which  (lie  exhibition  is  lo  Ink.-  place. 

The  inspection  shall  he  made  in  the  counting  house  of  the  merchant,  in  bin  pres- 
ence, or  that  of  the  person  he  may  designate,  and  .shall  he  limited  exclusively  to  the 
points  which  relate  to  the  matter  in  question,  said  points  being  the  only  ones  which 
may  he  verified. 

AIM-,  is.   In  order  to  graduate  the  weight  of  evidence  of  hooks  of  merchants  the 

following  rules  shall  he  observed: 

1.  Books  of  merchants  shall  he  evidence  against  themselves,  no  proof  to  the  con- 
trary being  admitted;  but  tin- opponent  can  not  accept  t  he  cut  rie.s  which  are  favor- 
able to  him  and  reject  those  which  prejudice  him ;  but,  having  admitted  this  means 
of  evidence,  he  shall  be  subject  to  the  results  which  they  may  conjointly  entail,  tak- 
ing into  equal  consideration  all  the  entries  relating  to  the  matter  in  litigation. 

"2.  If  the  entries  of  the  books  ex  hi  hi  ted  by  t  wo  merchants  should  not  conform,  and 
those  of  one  of  them  ha\c  been  kept  with  all  the  formalities,  mentioned  in  this  title 
and  those  of  t  he  ot  her  contain  any  defects  or  lack  the  requisites  prescribed  by  this 
code,  the  entries  of  the  books  correctly  kept  shall  be  admitted  against  those  of  the 
defective  ones  unless  the  contrary  is  demonstrated  by  means  of  other  proofs  legally 
admissible. 

3.  If  one  of  the  merchants  should  not  present  his  books  or  should  state  that  he  does 
not  possess  any,  those  of  his  adversary,  kept,  with  all   the  legal  formalities,  shall  be 
evidence  against  him  unless  it,  is  proven  that  the  lack  of  said  book  is  caused  by  force 
majeiire,  and  always  reserving  the  evidence  against  the  entries  exhibited,  by  the 
other  means  legally  admissible  in  suits. 

4.  If  the,  books  of  the  merchants  possess  all  the  legal  requirements  and  are  contra- 
dictory, the  judge  or  superior  court  shall  determine  by  the  rest  of  theevidence,  classi- 
fying it  according  to  tin;  general  legal  rules. 

ART.  -11*.  Merchants  and  their  heirH  or  successors  shall  preserve  the  books,  tele- 
grams, and  correspondence  of  their  business  in  general  for  the  entire  period  which 
the  latter  mav  last,  and  until  five  years  after  the  liquidation  of  all  their  commercial 
transactions  and  bU81] 

Documents  which  specially  relate  to  certain  acts  or  transactions  may  be  rendered 
useless  or  destroyed  after  the  time  of  the  limitation  of  the  actions  which  could  be 
brought  bv  virtue  thereof  has  elapsed,  unless  Home  question  referring  to  the  same 
directly  or  indirectly  is  pending,  in  which  case  they  must  be  kept  until  the  conclusion 
thereof. 

also  the  following  articles  of  the  same  code: 

ART.  70!).  A  bill  of  lading  drawn  up  in  accordance  with  the  provisions  of  this  title 
shall  be  proof  as  between  all  those  interested  in  the  cargo  and  between  the  latter 
and  the  underwriters,  proof  to  the  contrary  being  reserved  by  the  latter. 

AKT.  710.  Should  the  bills,  of  lading  not  agree,  and  there  should  not  be  observed 
any  correction  or  erasure  in  any  of  them,  tho  .  p.,  .1  by  the  freighter  or  con- 

-ii/iieir  signed    by  the  captain  shall   be  proof  against  the,  captain  or  agent  in  favor  of 

the  consignee  or  freighter;  and  th< ed  by  the  captain  «u  ncd  by  the 

freighter  be  proof  against  the  freighter  or  consignee  in  favor  of  the  captain  or  agent. 


130  LAW    OF    CIVIL    PROCEDURE. 

made  by  exports,  according  to  the  provisions  of  the  fifth  paragraph  of 
this  section.1 

ART.  606.  The  person  demanding  the  comparison  shall  designate  the 
document  or  documents  with  which  said  comparison  is  to  he  made  as 
to  the  authenticity  of  which  there  is  no  doubt. 

Should  no  such  documents  exist  a  public,  document  shall  be  considered 
efficient,  and  with  regard  to  private  documents  the  judge,  shall  take 
their  value  into  consideration  in  combination  with  the  other  evidence. 

ART.  607.  The  following  shall  be  considered  as  genuine  for  the  pur- 
poses of  comparison: 

1.  The  documents  which  the  parties  acknowledge  as  such  by  common 
agreement. 

2.  Formal  public  instruments. 

3.  Private  documents,  the  handwriting  or  signature  of  which  has  been 
acknowledged  in  court  by  the  person  alleged  to  be  the  writer  thereof. 

4.  The  portion  of  the  document  questioned,  the  handw  rit  ing  of  which 
is  acknowledged  by  the  person  prejudiced  thereby. 

In  the  absence  of  these  means  the  party  alleged  to  be  the  writer  or 
subscriber  of  the  document  questioned  may  be  required,  at  the  instance 
of  the  opposite  party,  to  write  such  sentences  as  the  judge  may  dic- 
tate at  the  time.  Should  he  refuse  to  do  so,  such  refusal  may  he  held 
as  an  acknowledgment  of  the  authenticity  of  the  document  questioned. 

ART.  608.  The  judge  shall  himself  make  the  comparison  after  hear- 
ing the  experts  thereupon,  and  he  shall  decide  upon  the  result  of  this 
proof  in  accordance  with  the  rules  of  sound  judgment,  without  being 
obliged  to  subject  himself  to  the  opinion  of  said  experts.2 

§  5. — Opinion  of  experts. 

ART.  609.  Expert  testimony  may  be  used  when,  in  order  to  deter- 
mine or  consider  some  fact  of  influence  in  the  action,  scientific,  artist  ic, 
or  practical  knowledge  becomes  necessary.8 

1The  comparison  of  signatures  made  by  virtue  of  an  order  is  not  subject  to  the  con- 
ditions established  for  these  proceedings  in  the  Civil  Procedmv,  and  therefore  I  In- 
decision rendered  by  virtue  of  a  comparison  made  in  the  manner  prescribed  does  not 
violate  these  provisions,  although  the  documents  employed  for  this  purpose  do  not 
conform  to  the  conditions  established  in  the  article  mentioned. — Decision  of  April  20, 
1877. 

2 Courts  are  not  obliged  to  adjust  their  decisions  to  the  opinions  of  experts,  and 
less  so  when  said  opinions  are  deficient. — Decision  of  March  7,  1885. 

3 A  ruling  denying  the  admission  of  expert  testimony  is  not  definite  for  the  pur- 
poses of  an  appeal  for  annulment  of  judgment. — Decision  of  April  29,  1886. 

There  is  no  breach  of  form  when  a  petition  that  handwriting  experts  give  testi- 
mony with  regard  to  the  sense,  expression,  and  intention  of  a  document  is  denied, 
which  are  facts  which  can  and  must  be  considered  only  by  the  court  and  with  regard 
to  which  said  experts  are  not  competent.  —Decision  of  March  22,  1888. 

The  general  principle  of  this  article  concords  with  article  1242  of  the  Civil  Code, 
and  which  in  article  1243  refers  to  this  law  with  regard  to  the  value  and  manner  of 
taking  expert  testimony. 


LAW    OF    CIVIL    PROCEDURE.  131 

A  in.  <»lo.  The  party  who  desires  that  expert  testimony  be  taken, 
shall  slate  dearly  and  precisely  the  matter  with  regard  to  which  he 
de-ires  expert  testimony. 

In  the  same,  instrument  he  shall  state  whether  one  or  three  experts 
are  to  In-  designated. 

ART.  Ull.  Within  the  three  days  following  that  of  the  delivery  of 
the  copy  of  the,  instrument,  requesting  said  expert  testimony,  the  oppo- 
>ite  party  or  parties  may  I  >rieny  state  what  they  may  deem  proper  with 
regard  to  the  pertinency  thereof  or  its  extension,  in  a  proper  case,  to 
other  questions  at  issue,  and  as  to  whether  the  number  of  experts  is  to 
be  one  or  three. 

ART.  61iJ.  The  judge,  without  further  proceedings,  shall  decide  what 
he,  may  deem  proper  with  regard  to  the  admission  of  said  testimony. 
Should  he  consider  it  pertinent  he  shall  state  in  the  same  ruling  upon 
what  points  the  expert  testimony  is  to  be  taken  and  whether  it  is  to 
be  given  by  one  or  three  experN. 

With  regard  to  the  last  point,  he  shall  consider  the  number  agreed 
upon  by  the  parties,  and  should  they  not  have  agreed  upon  a  number, 
he  shall  decide  what  he  may  deem  proper,  without  further  remedy, 
taking  into  consideration  the  importance  of  the  question  and  the 
amount  involved  in  the  action.' 

ART.  <;i:;.  In  the  same decision  by  which  expert  testimony  is  ordered 
taken,  the  judge,  shall  order  the  parties  or  their  solicitors  to  appear 
before  him  at  a  day  and  hour  which  he  may  fix,  within  the  six  days 
following,  for  the  purpose  of  agreeing  upon  the  expert  or  experts  to 
be,  appointed. 

I  f  a  party  should  not  appear  it  shall  be  understood  that  he  agrees  to 
the  experts  designated  by  the  opposite  party. 

ART.  614.  The  experts  must  have  a  diploma  as  such  in  the  science 
or  art  to  which  the  matter  upon  which  they  are  to  give  their  opinion 
belongs,  if  their  profession  is  regulated  bylaw  or  by  the  Government. 

Otherwise  or  should  there  not  be  experts  of  this  class  in  the  judi- 
cial dist  net ,  if  the  parties  should  not  agree  to  select  them  from  another 
phice,  any  person  having  a  knowledge  of  the  subject,  even  though 
be  should  have  no  diploma,  may  be  selected.2 

1  A  jud^o  who  should  consider  impertinent  and  unnecessary  the  expert  testimony 
r v<  j  i  io:-t  •  -d  hy  a  party  in  an  action  upon  a  letter  which  ha«  already  been  acknowledged 
as  genuine;  by  its  author  and  should  refuse  it,  acts  in  accordance  with  the  provisions 
n!  article  012  of  the  law  of  civil  procedure. — Decwism  of  December  13,  1888. 

1  icultural  experts  may  measure  estates,  whatever  be  their  area,  and  appraise 
tl  i«..-e  whose  area  is  not  more  than  30  hectares  when  judicial  proceedings  are  in 
(|iie.-1ion.—  Arti.rb>  lz  of  the  Regulations  of  October  14,  1887. 

The  judicial  examination  of  works,  whether  made  judicially  or  extrajudicially, 
may  1><;  made  by  architects  or  builders;  but  when  buildings  of  a  public  character  are 
in  question  the  architects  only  can  act. — Articles  2,  8,  and  8  of  the  Royal  decree  of 
.liiiiiiiii-ij  ,v,  1870. 

Expert  appraisers  of  furniture,  clothing,  and  jewelry  do  not  require  a  diploma, 


132  LAW    OF    CIVIL    PEOCEDUEE. 

ART.  615.  When  the  parties  do  not  come  to  an  agreement  with 
regard  to  the  appointment  of  an  expert  or  experts,  the  judge  shall  at 
once  place  in  a  box  the  names  of  three  at  least  for  each  one  to  be  des- 
ignated from  among  those  who  pay  in  the  judicial  district  an  indus- 
trial tax  for  the  profession  or  industry  to  which  their  occupation  belongs, 
and  those  selected  by  lot  shall  be  considered  as  appointed. 

Should  there  not  be  a  sufficient  number,  the  selection  and  appoint- 
ment of  the  expert  or  experts  shall  be  made  by  the  judge  within  two 
days  after  that  of  the  appearance. 

ART.  616.  The  experts  who  at  the  time  of  the  appearance  may  be 
challenged  by  any  of  the  parties  on  account  of  any  of  the  causes 
.mentioned  in  article  620,  shall  not  be  included  in  the  drawing,  nor 
shall  they,  in  a  proper  case,  be  appointed  by  the  judge. 

ART.  617.  After  the  expert  or  experts  have  been  appointed  they 
shall  be  informed  thereof,  in  order  that  they  may  accept  the  same  and 
take  an  oath  that  they  will  well  and  faithfully  perform  their  duty 
within  the  limits  which  the  judge  may  assign  to  them. 

ART.  618.  The  experts  may  be  challenged  for  causes  which  arise 
subsequent  to  their  appointment. 

Those  selected  by  lot  or  appointed  by  the  judge  may  also  be  chal- 
lenged for  causes  arising  prior  to  their  appointment. 

ART.  619.  The  challenge  shall  be  interposed  in  an  instrument  signed 
by  the  attorney  and  the  solicitor  of  the  party,  and  shall  briefly  state  the 
cause  of  challenge  and  the  means  of  proving  the  same. 

In  the  case  of  the  first  paragraph  of  the  foregoing  article,  the  written 
challenge  must  be  filed  before  the  day  fixed  for  the  beginning  of  the 
examination;  in  the  second  case,  within  two  days  after  notice  of  their 
appointment  has  been  served. 

ART.  620.  The  following  are  legitimate  causes  of  challenge: 

1.  That  the  expert  is  a  relative  of  the  opposite  party  by  consan- 
guinity or  affinity  within  the  fourth  civil  degree. 

2.  That  he  has  previously  given  an  opinion  upon  the  same  question 
adverse  to  the  challenging  party. 

3.  That  he  has  rendered  services  as  such  expert  to  the  opposite  liti- 
gant or  that  he  is  a  partner  or  employee  of  the  same. 

4.  That  he  has  a  direct  or  indirect  interest  in  the  action  or  another 
similar  one  or  an  interest  in  the  company,  establishment,  or  enter- 
prise against  which  the  challenging  party  is  litigating. 

5.  Manifest  enmity. 

6.  Intimate  friendship. 

ART.  621.  The  judge  shall,  eo  instanti,  deny  the  challenge  if  it  is 

the  judges  being  permitted  to  make  use  of  the  services  of  those  whom  they  consider 
most  proficient,  provided  that  they  are  recorded  in  the  proper  registry  (Royal  order 
of  November  15,  1887);  but  they  can  not  use  the  services  of  those  who  are  not  reg- 
istered.— Regulations  of  July  13,  1882,  article  118, 


LAW    OF    CIVIL    PROCEDURE.  133 

not  clearly  based  upon  some  of  the  causes  mentioned  in  the  foregoing 
article  or  if  it  should  not  have  been  presented  with  the  formalities 
and  within  the  periods  fixed  in  article  619. 

ART.  622.  After  the  challenge  has  been  properly  presented,  the  judge 
shall  order  that  notice  thereof  be  given  to  the  expert  challenged,  in 
order  that  upon  the  notification  he  may  state  under  oath,  administered 
by  the  clerk,  whether  or  not  the  clause  upon  which  said  challenge  is 
based  is  true. 

If  he  admits  the  truth  of  the  cause,  he  shall  be  considered  as  chal- 
lenged without  further  proceedings,  and  he  shall  be  replaced  by  another 
appointed  by  the  judge. 

ART.  623.  When  the  expert  denies  the  truth  of  the  cause  of  the 
challenge,  the  judge  shall  order  that  the  parties  appear  before  him  at 
the  day  and  hour  which  he  may  designate,  with  the  evidence  which 
the}T  may  desire  to  present. 

If  the  challenging  party  does  not  appear,  he  shall  be  understood  to 
have  withdrawn  the  challenge. 

If  all  the  parties  litigant  appear,  the  judge  shall  request  them  to 
agree  upon  the  propriety  of  the  challenge,  and,  in  a  proper  case,  upon 
the  appointment  of  the  expert  who  is  to  substitute  the  one  challenged. 

Should  they  not  come  to  an  agreement,  the  judge  shall  admit  the 
evidence  which  may  be  submitted,  and  shall  attach  the  documents 
to  the  record,  thereupon  deciding  what  he  may  consider  proper. 

If  the  challenge  be  sustained,  the  judge  shall  himself  appoint 
another  expert,  if  the  parties  should  not  have  designated  one  by 
common  agreement. 

A  proper  record  of  the  results  of  these  proceedings,  which  may  be 
attended  by  the  attorneys  of  the  parties,  shall  be  made  and  signed  by 
all  the  parties  present. 

ART.  624.  When  the  challenge  of  an  expert  is  disallowed,  the  chal- 
lenging party  shall  be  adjudged  to  pay  all  the  costs  of  this  issue. 

He  may  also  be  adjudged  to  pay,  by  way  of  indemnity,  to  the  party 
or  parties,  the  amount  which  the  judge  may  deem  proper,  not  exceed- 
ing 500  pesetas. 

ART.  625.  The  parties  and  their  counsel  may  attend  the  expert 
examination  and  make  such  suggestions  to  the  experts  as  they  may 
deem  proper. 

For  this  purpose  a  day  and  hour  shall  be  set  for  the  beginning  of 
this  proceeding,  if  any  of  the  parties  should  request  it. 

When  there  are  three  experts,  the  examination  shall  be  conducted 
by  the  three  together. 

ART.  626.  The  experts,  after  conferring  with  each  other,  if  there 
are  three,  shall  make  their  report  in  writing  or  orally,  according  to 
the  importance  of  the  matter,  stating  their  reasons  therefor. 

In  the  first  case  the}r  shall  do  so  in  the  form  of  a  statement,  and  in 
the  second  case  they  shall  ratify  it  by  an  oath  in  the  presence  of  the 


134  LAW    OF    CIVIL    PROCEDURE. 

judge;  they  shall  make  either  report  immediatel}7  after  the  examina- 
tion, and  if  this  should  not  be  possible,  upon  the  day  and  at  the  hour 
which  the  judge  may  designate. 

ART.  627.  The  parties  or  their  counsel  may  request,  at  the  time  of 
the  statement  or  ratification,  that  the  judge  require  of  the  expert  or 
experts  the  explanations  which  may  be  proper  for  the  elucidation  of 
the  questions. 

AKT.  628.  When  there  are  three  experts  and  they  all  agree,  they 
shall  give  or  draft  their  opinion  in  a  single  statement  signed  by  all 
of  them. 

If  they  disagree,  they  shall  make  as  many  statements  or  reports  as 
there  are  opinions. 

ART.  629.  The  expert  examination  shall  not  be  repeated,  even 
though  the  insufficiency  of  the  examination  be  alleged,  or  even  if  a 
majority  or  unanimous  agreement  has  not  been  reached  by  the  experts. 

Nevertheless,  whenever  the  judge  considers  it  necessary,  he  may 
make  use  of  the  privilege  granted  by  article  340,  and  may  order,  in 
the  furtherance  of  justice,  that  another  examination  be  made,  or  that 
the  previous  one  be  extended  by  the  same  experts,  or  by  others 
selected  by  him.  . 

ART.  630.  At  the  instance  of  any  of  the  parties,  the  judge  may 
request  a  report  of  the  proper  academy,  college,  or  corporation,  when 
the  expert  opinion  requires  special  scientific  operation  or  knowledge. 

In  such  case  said  report  shall  be  attached  to  the  record  and  it  shall 
produce  its  effects  in  the  report,  even  though  it  should  be  made  or 
received  after  the  period  for  the  admission  of  evidence  has  expired. 

ART.  631.  The  judges  and  courts  shall  consider  the  expert  testimony 
according  to  the  rules  of  sound  judgment,  without  being  obliged  to 
subject  themselves  to  the  opinion  of  the  experts.1 

§  6. — Judicial  Inspection.2 

1  Although  the  judge  is  not  subjected  to  the  opinion  of  the  experts,  when  the  expert 
opinion  constitutes  a  means  of  evidence,  he  is  obliged,  on  the  contrary,  to  subject 
himself  thereto  if  it  is  the  result  of  an  agreement  between  the  parties  with  regard  to 
any  question  at  issue. — Decision  of  October  30,  1878. 

It  would  be  a  manifest  error  to  give  an  obligatory  and  decisive  character  to  the 
opinions  mentioned  in  the  foregoing  article,  because  they  only  constitute  one  of  the 
means  of  evidence,  which  is  to  be  analyzed,  classified,  and  weighed  by  the  court. — 
Decision  of  September  29,  1881. 

Art.  630  of  the  law  of  Civil  Procedure  grants  full  powers  to  the  court  to  wreigh 
expert  evidence. — Decision  of  April  19,  1883. 

Courts  are  not  obliged  to  subject  themselves  to  the  opinions  of  experts,  and  less  so 
when  said  reports  are  deficient. — Decision  of  March  7,  1885. 

It  is  a  principle  of  law  sanctioned  by  various  decisions  that  courts  are  not  obliged 
to  subject  themselves  to  expert  opinions,  but  that  they  can  and  must  consider  the 
same  according  to  the  rules  of  sound  judgment. — Decision  of  June  15, 1887. 

See  article  657  of  this  law. 

2  See  articles  1240  and  1241  of  the  Civil  Code. 


-i  or; 
LAW    OF    CIVIL   PROCEDURE. 

632    If  for  the  purpose  of  elucidating  and  weighing  the  facts 


attend  the  examination  and  ocular  inspection  and  make  such  verbal 
6a<L    635    The  witnesses  may  be  examined  at  the  of  and  imme 


ously  requested  by  a  party  in  interest. 

7  —Evidence  of  witnesses.1 


tte 


value  which  their  statements  deserve.— 


136  LAW    OF    CIVIL    PROCEDURE. 

These  lists  may  be  enlarged  within  said  period. 

A  copy  of  the  lists  shall  be  given  to  the  opposite  party  or  parties, 
and  no  witnesses  other  than  those  mentioned  therein  can  be  examined. 

ART.  640.  The  litigants  may  present  cross-interrogatories  before  the 
examination  of  the  witnesses. 

The  judge  shall  approve  those  that  are  pertinent  and  reject  all  others. 

These  interrogatories  may  be  presented  under  a  sealed  cover,  which 
shall  be  opened  at  the  beginning  of  the  proceedings  for  the  examina- 
tion of  the  witnesses. 

Those  which  are  presented  unsealed  shall  be  reserved  in  the  custody 
of  the  judge  under  his  personal  liability. 

ART.  641.  The  judge  shall,  at  least  three  days  beforehand,  fix  a  day 
and  hour  at  which  the  examination  of  the  witnesses  of  each  party  shall 
commence. 

These  proceedings  shall  take  place  in  open  court  in  the  presence  of 
the  parties  and  their  counsel,  should  they  attend  the  same. 

ART.  642.  Witnesses  residing  within  the  judicial  district  who  refuse 
to  voluntarily  appear  to  testify,  shall  be  cited  to  appear  by  subpoena 
at  least  two  days  before  that  fixed  for  the  examination,  if  the  party 
interested  should  request  it. 

The  judge  may,  at  the  instance  of  any  party  to  the  action,  issue  such 
compulsory  process  against  the  witness  who  refuses  to  appear  without 
just  cause  as  he  may  consider  would  tend  to  compel  his  appearance, 
including  that  of  being  forcibly  brought  into  court. 

ART.  643.  The  witnesses  who  may  be  compelled  to  appear  accord- 
ing to  the  provisions  of  the  foregoing  article,  shall  have  the  right  to 
demand  of  the  interested  party  the  assistance  or  the  payment  of  the 
indemnity  that  may  be  proper. 

If  there  should  be  no  agreement  between  the  interested  parties  on  the 
subject,  the  judge  shall  fix  the  amount  without  further  remedy,  taking 
into  consideration  the  circumstances  of  the  case,  and  he  shall  oblige 
the  solicitor  of  the  party  to  pay  the  same  as  costs  in  the  action,  if  the 
witness  should  make  a  verbal  demand  therefor  at  the  hearing  in  ques- 
tion, or  during  the  next  fifteen  days. 

ART.  644.  The  litigants  may  present  as  many  witnesses  as  they  may 
desire  without  limitation  as  to  number,  but  the  costs  and  expenses  of 
all  witnesses  exceeding  six  upon  each  point  at  issue,  shall  in  all  cases 
be  paid  by  the  person  presenting  such  witnesses. 

ART.  645.  The  witnesses  shall  be  examined  separately  and  succes- 
sively and  in  the  order  in  which  they  are  named  in  the  lists,  unless  the 
judge  should  consider  it  proper  to  change  such  order. 

Witnesses  who  have  testified  shall  not  communicate  with  the  other 
witnesses,  nor  shall  the  latter  be  present  when  the  former  are  testi- 
fying. 

To  this  end  the  judge  shall,  at  the  request  of  any  of  the  parties,  adopt 
such  measures  as  he  may  consider  proper. 


LAW    OF    CIVIL    PROCEDURE.  137 

ART.  646.  Before  testifying  the  witness  shall  take  oath  in  the  man- 
ner, and  subject  to  the  penalties  prescribed  by  law.  If  the  witness 
professes  ignorance  with  regard  thereto,  the  judge  shall  inform  him  of 
the  penalties  for  the  crime  of  giving  false  testimony  in  a  civil  cause. 

An  oath  shall  not  be  administered  to  witnesses  under  fourteen  years 
of  age. 

ART.  647.  Each  witness  shall  be  asked: 

1.  His  name  and  surname,  age,  status,  occupation,  and  place  of 
residence. 

2.  Whether  he  is  a  relative  by  consanguinity  or  affinity,  and  in  what 
degree,  of  any  of  the  litigants. 

3.  Whether  he  is  an  employee  or  servant  of  the  person  for  whom 
he  appears,  or  whether  he  is  a  partner  of,  or  has  any  other  interests  or 
connection  with  said  party. 

4.  Whether  he  has  any  direct  or  indirect  interest  in  the  action  or 
in  another  similar  action. 

5.  Whether  he  is  an  intimate  friend  or  enemy  of  any  of  the  litigants. 
ART.  648.  As  soon  as  the  witness  shall  have  answered  the  questions 

prescribed  in  the  foregoing  article,  he  shall  be  examined  upon  each  of 
those  contained  in  the  interrogatory  and  which  have  been  admitted  by 
the  judge,  or  upon  those  designated  by  the  person  for  whom  he 
appears. 

He  shall  thereupon  be  examined  upon  the  cross-interrogatories,  if 
an}T  have  been  presented  and  admitted. 

To  each  of  his  answers  the  witness  shall  give  the  reasons  upon  which 
it  is  founded. 

ART.  649.  The  witness  shall  answer  orally  without  the  aid  of  any 
memorandum. 

When  the  question  refers  to  accounts,  books,  or  papers,  he  shall  be 
permitted  to  consult  them  in  order  to  make  answer. 

ART.  650.  The  declarations  of  each  witness  shall  be  written  out 
separately,  but  one  immediately  following  the  other. 

The  witness  may  himself  read  his  testimony.  Should  he  not  desire 
to  make  use  of  this  right,  the  clerk  shall  read  it,  and  the  judge  shall 
ask  the  witness  whether  he  ratifies  it  or  has  anything  to  add  or  change, 
his  answer  being  written  immediately  thereafter. 

The  witness  shall  thereupon  subscribe  said  declaration,  if  able  to  do 
so,  together  with  the  judge,  the  clerk,  and  all  other  parties.1 

ART.  651.  The  parties  and  their  counsel  can  not  interrupt  the  wit- 
nesses, nor  ask  other  questions  or  cross-questions  than  those  set  forth 
in  their  respective  interrogatories. 

Only  in  the  event  that  the  witness  shall  fail  to  fully  answer  any 
question  or  cross-question,  or  should  contradict  himself,  or  have 

Declarations  of  witnesses  not  authenticated  by  the  clerk  have  no  legal  value. — 
Decision  of  Feb.  20,  1869. 


138  LAW    OF,  CIVIL    PROCEDURE. 

expressed  himself  ambiguously,  may  the  parties  or  their  counsel  call 
the  attention  of  the  judge  to  the  fact,  in  order  that,  should  he  deem  it 
proper,  he  may  require  the  witness  to  make  the  proper  explanations. 

The  judge  may  also  ex  officio  request  of  the  witness  the  explanations 
he  may  deem  proper  for  the  elucidation  of  the  facts  upon  which  he 
may  have  testified. 

ART.  652.  If  it  were  impossible  to  conclude  the  examination  of  the 
witnesses  of  one  side  at  one  sitting,  it  shall  be  continued  at  the  follow- 
ing session  of  the  court  or  at  the  one  which  the  judge  may  designate. 

ART.  653.  If,  for  any  reason  whatsoever,  all  the  witnesses  do  not 
appear  at  the  time  fixed  for  their  examination,  on  the  petition  of  the 
party  interested,  the  judge  shall  set  another  day  and  hour  at  which 
they  are  to  appear,  and  shall  notify  the  parties  thereof. 

ART.  654.  If,  on  account  of  sickness  or  for  any  other  cause  which 
the  judge  may  consider  good,  some  witness  can  not  be  present  in  the 
court  room,  his  declaration  may  be  taken  at  his  residence  in  the 
presence  of  the  parties  and  their  counsel,  unless  the  judge,  in  view  of 
the  circumstances  of  the  case,  considers  their  presence  unadvisable. 

In  such  case  the  parties  may  examine  the  declaration  in  the  clerk's 
office. 

ART.  655.  When  the  examination  of  the  witnesses  is  to  be  made  beyond 
the  place  where  the  action  is  pending,  to  the  letters  rogatory  or  com- 
munication issued  for  the  purpose,  shall  be  attached,  in  a  sealed  cover, 
the  interrogatory  of  questions  admitted  by  the  judge  hearing  the 
cause. 

The  judge  to  whom  said  letters  rogatory  are  addressed  shall  open 
said  sealed  interrogatory  at  the  time  of  the  commencement  of  the 
examination  of  the  witnesses. 

ART.  656.  If  any  witness  should  not  speak  or  understand  the  Span- 
ish language  he  shall  be  examined  through  an  interpreter,  whose 
appointment  shall  be  made  in  the  manner  prescribed  for  the  appoint- 
ment of  experts. 

ART.  657.  Deaf  mutes  may  be  admitted  as  witnesses  if,  being  able 
to  read  and  write,  they  can  give  their  declarations  in  writing. 

ART.  658.  Judges  and  courts  shall  weigh  the  force  of  the  declarations 
of  the  witnesses  according  to  rules  of  sound  judgment,  taking  into  con- 
sideration the  reasons  upon  which  they  are  based  and  the  circumstances 
connected  therewith.1 

Nevertheless,  when  the  law  determines  the  number  or  the  qualifica- 
tions of  witnesses  as  a  formality  or  special  circumstance  of  the  act  to 
which  they  refer,  the  provisions  for  said  case  shall  be  observed.2 

1  See  article  1248  of  the  Civil  Code. 

2  In  order  to  question  the  weight  of  some  evidence  it  is  only  pertinent  to  cite,  as 
violated,  laws  or  doctrines  which  among  other  circumstances  combine  the  condition 
of  forming  part  of  those  explicitly  destined  to  fix  the  kinds  of  proof,  indicate  the 
value  thereof  or  their  efficiency,  because  those  of  another  character  can  hardly  serve 


LAW    OF    CIVIL    PEOCEDUEE.  139 

§  8.   Challenge  of  witnesses. 


ART.  659.  Each  party  may  challenge  the  witnesses  of  the  opposite 
party  for  any  of  the  following  reasons: 

1.  Relationship  of  the  witness  to  the  party  for  whom  he  appears  by 
consanguinity  or  affinity  within  the  fourth  civil  degree. 

as  an  argument  against  the  consideration  of  evidence,  when  they  can  not  serve  as  a 
guide  thereto. — Decision  of  March  31,  1865. 

With  regard  to  the  proof  of  the  legal  existence  of  a  will,  courts  can  not  be  convinced 
by  the  full  and  rational  means  which  are  established  for  ordinary  facts  in  this  article; 
but  they  must  adjust  their  judicial  criterion  to  the  special  rules  which  the  laws  estab- 
lish for  the  proof  of  such  acts,  with  regard  to  the  number  and  qualifications  of  the 
attesting  witnesses,  as  well  as  with  regard  to  the  other  formalities  which  are  to  be 
observed. — Decisions  of  October  26,  1864,  and  February  6,  1866. 

The  rule  relating  to  sound  judgment  can  not  be  understood  as  meaning  that  in  the 
absence  of  other  evidence  full  faith  is  not  to  be  given  to  witnesses  who  do  not  state 
on  what  they  base  their  answers. — Decision  of  December  26,  1878. 

The  rule  that  two  reputable  witnesses  are  sufficient  to  prove  the  truth  of  a  com- 
plaint does  not  mean  that  whenever  they  do  attend  is  the  complaint  to  be  declared 
proven,  and  much  less  so  when  complicated  evidence  is  to  be  considered.  A  chamber 
which  disallows  the  petition  of  the  plaintiff  does  not  violate  the  law  of  civil  proce- 
dure.— Decision  of  May  4,  1880. 

According  to  article  658  of  the  law  of  civil  procedure,  "judges  in  weighing  the 
evidence  of  witnesses  are  allowed  a  reasonable  liberty  in  order  to  form  their  opinions, 
without  considering  the  number,  but  only  the  value  of  the  testimony,  weighed  in 
accordance  with  the  rules  of  sound  judgment. — Decision  of  June  23,  1881. 

This  article  is  not  applicable  when  the  decision  is  not  based  on  the  evidence  of 
witnesses,  but  on  documentary  evidence. — Decision  of  April  3,  1879. 

It  is  not  a  principle  of  law  nor  a  rule  of  sound  judgment  that  the  statements  of 
witnesses  not  challenged  are  to  be  accepted  in  their  entirety,  because  this  claim 
would  be  contrary  to  the  reasonable  liberty  which  the  law  grants  to  judges  and 
courts  in  weighing  the  evidence  of  witnesses. — Decision  of  November  18,  1881. 

Law  2,  Title  XVI,  Book  XI,  of  the  Novisima  Recopilacion  relating  to  evidence  has 
been  repealed  by  the  law  of  civil  procedure,  as  the  Supreme  Court  has  repeatedly 
declared. — Decision  of  June  30,  1865. 

Laws  32,  40,  and  41,  Title  XVI,  Partida  3,  relating  to  the  value  of  the  evidence  of 
witnesses  have  been  repealed  by  article  317  of  the  former  law  of  civil  procedure 
and  by  article  659  of  the  present  law  (658  of  the  law  for  Cuba  and  Porto  Eico). — 
Decision  of  December  21,  1881,  and  many  others. 

The  following  laws  of  the  same  title  and  partida  have  also  been  repealed :  Law  22 
(Decision  of  June  15,  1880};  law  4  (Decisions  of  June  11,  1879,  and  April  17,  1880}; 
laws  28  and  29  (Decision  of  October  19,  1879},  and  also  law  16  of  Title  XXXII  (Deci- 
sion of  December  5, 1879},  and  laws  1  and  8  of  Title  XIV  of  the  same  partida  (Decision 
of  October  29,  1879}.  Finally,  by  decisions  of  March  13  and  22, 1889,  it  is  stated  that 
the  laws  of  the  Partidas  relating  to  the  evidence  of  witnesses  have  all  been  repealed 
by  the  law  of  civil  procedure. 

Notwithstanding  this  decision  the  Supreme  Court  declared  (Decision  of  February 
20,  1861}  that  the  last  part  of  law  32,  Title  XVI,  Partida  3,  which  declares  that  a 
complaint  can  not  be  considered  proven  by  the  testimony  of  a  single  witness,  is  still 
in  force. 

An  appeal  for  annulment  of  judgment  can  not  be  based  on  a  violation  of  article  658 
of  the  law  of  civil  procedure,  if  at  the  same  time  there  are  not  stated  the  rules  of 
sound  judgment  which  the  adjudging  chamber  has  not  considered  in  weighing  the 
evidence  of  witnesses. — Decision  of  December  5,  1882. 


140  LAW    OF   CIVIL    PROCEDURE. 

2.  That  the  witness  at  the  time  of  giving  his  testimony  is  a  partner, 
employe*,  or  servant  of  the  party  for  whom  he  appears. 

For  the  purposes  of  this  provision,  a  servant  or  employe  shall  be 
considered  the  person  who  lives  in  the  house  of  the  litigant  and  per- 
forms therein  mechanical  services  for  a  fixed  salary;  and  an  employe*, 
a  person  who  habitually  renders  for  the  litigant  remunerated  services, 
although  not  living  in  his  house. 

3.  That  the  witness  has  a  direct  or  indirect  interest  in  the  action  or 
in  another  similar  action. 

4.  That  the  witness  has  been  condemned  for  giving  false  testimony. 

5.  That  the  witness  is  an   intimate   friend  or  an  open  enemy  of 
one  of  the  litigants.1 

ART.  000.  Within  four  days  after  the  evidence  of  the  witnesses  for 
one  party  has  been  taken,  any  one  of  them  may  be  challenged  by  the 
opposite  party,  when  any  of  the  causes  mentioned  in  the  foregoing 
article  are  attendant  and  such  fact  had  not  been  acknowledged  in  his 
testimony. 

ART.  001.  In  the  instrument  alleging  the  causes  for  challenge  the 
proof  thereof  shall  be  presented  in  a  supplementary  statement. 

If  proofs  are  not  presented  it  shall  be  understood  that  the  challenge 
is  withdrawn. 

ART.  002.  The  party  in  interest  may  object  to  the  causes  of  chal- 
lenge within  the  three  days  following  that  upon  which  a  copy  of  the 
written  challenge  is  served  upon  him. 

He  may  also,  by  means  of  a  supplementary  statement,  submit  the 
evidence  in  his  favor,  and  should  he  not  do  so,  it  shall  be  understood 
that  he  withdraws  the  same. 

ART.  003.  If  neither  of  the  parties  submits  proof  of  the  cause  for 
challenge,  such  challenges  shall  be  attached  to  the  record  without 
further  proceedings  and  shall  be  considered  at  the  proper  time. 

If  they  have  offered  proof,  the  judge  shall  admit  that  which  is  per- 
tinent, and  shall  order  that  the  evidence  be  taken. 

ART.  004.  The  evidence  relating  to  causes  of  challenge  shall  be  pre- 
sented during  the  time  remaining  of  the  second  period  for  the  taking 
of  evidence. 

If  there  be  not  sufficient  time  therefor,  the  judge  may  extend  it  for 
this  purpose  only,  for  the  period  he  may  consider  necessary,  but  in  no 
case  can  the  extension  exceed  ten  days. 

ART.  005.  The  evidence  relating  to  causes  of  challenge  shall  be 
attached  to  the  record  of  the  principal  evidence  for  the  proper  final 
effects. 

JSee  article  1247  of  the  Civil  Code  relating  to  the  legal  disqualification  to  be  a  wit- 
ness, and  to  which  article  this  one  is  subordinated. 

The  Supreme  Court  has  declared  hereon  that  a  challenge  interposed  by  reason  of 
relationship  is  subordinated  to  the  provisions  of  law  9,  Title  VIII,  Book  II,  of  the 
"Fuero  Real,"  when  the  relationship  is  to  both  litigants. — Decision  of  October  3,  J868. 


LAW    OF    CIVIL    PROCEDURE.  141 

SECTION  VI. — Final  pleadings,  hearings,  and  judgments. 

ART.  6M.  After  the  period  for  the  taking  of  evidence  has  expired, 
or  after  all  the  evidence  submitted  has  been  taken,  without  any  action 
on  the  part  of  the  interested  parties,  or  without  taking  account  of  their 
action  should  the}T  take  any,  the  judge  shall  order  that  the  evidence 
taken  bo  attached  to  the  record,  giving  notice  thereof  to  the  parties. 

A  i IT.  667.  The  party  who  prefers  to  argue  his  case  orally  instead  of 
in  writing  must,  within  three  days  after  notice  of  the  order  mentioned 
in  the  preceding  article  has  been  served,  present  a  petition  for  a  public 
hearing. 

ART.  668.  The  three  days  having  passed  without  any  of  the  parties 
having  requested  a  public  hearing,  the  judge  shall  order  that  the  orig- 
inal record  be  delivered  to  each  of  the  parties,  in  their  order,  so  that 
they  may  make  their  final  pleadings  and  file  a  written  brief  of  the 
evidence. 

For  this  purpose  there  shall  be  granted  to  each  party  a  period  not 
less  than  ten  nor  more  than  twenty  days.  Only  in  case  that,  owing  to 
the  volume  or  complicated  character  of  the'  evidence,  the  judge  shall 
consider  it  necessary,  he  may  extend  said  time,  at  the  instance  of  a 
part}T,  to  thirty  days,  which  period  can  not  be  extended. 

ART.  669.  The  final  pleadings  shall  be  limited  to  the  following: 

1.  In  numbered  paragraphs  there  shall  be  stated,  with  clearness  and 
with  the  greatest  possible  conciseness,  each  one  of  the  facts  which  have 
been  the  object  of  the  contention,  making  a  short  and  methodic  brief 
of  the  evidence  which,  in  the  judgment  of  the  each  party,  sustains  or 
disproves  them. 

2.  In  paragraphs,  also  brief  and  numbered,  and  following  the  same 
order  as  that  of  the  facts,  the  evidence  of  the  opposite  party  shall  be 
discussed. 

3.  The  principles  of  law  respectively  alleged  in  the  complaint  and 
answer,  and,  in  a  proper  case,  in  the  replication  and  rejoinder,  shall 
be  fully  and  concisely  stated,  if  contended  for  in  whole  or  in  part. 

There  may  also  be  stated  other  laws  or  principles  of  law  upon  which 
a  decision  of  the  questions  at  issue  in  the  cause  may  be  based;  but  they 
shall  be  confined  to  a  citation  thereof,  without  comment  or  argument 
other  than  to  show  the  positive  character  in  which  they  are  considered 
pertinent  to  the  question  at  issue. 

Without  further  argument  the  case  shall  be  submitted  for  judgment 

ART.  670.  The  final  pleadings  shall  be  attached  to  the  record  the 
copies  prescribed  being  furnished  to  the  other  parties  to  the  actior 

ART.  671.  As  soon  as  the  period  granted  for  the  final  pleadings  har 
expired,  the  record  shall  be  recovered  from  the  party  in  possession 
thereof  upon  the  request  of  the  opposite  party,  with  or  without  the 
final  pleadings,  and  the  proper  action  shall  then  be  taken. 


142  LAW    OF    CIVIL    PROCEDURE. 

ART.  672.  After  the  record  has  been  returned  by  the  defendant,  or 
recovered  by  compulsory  process,  the  judge  shall  order  that  it  be 
considered  closed,  and  that  it  be  brought  before  him  for  judgment, 
with  a  citation  of  the  parties. 

AKT.  673.  In  the  case  of  article  667,  a  copy  of  the  petition  for  a 
public  hearing  shall  be  given  to  the  opposite  party,  in  order  that 
within  two  days  after  the  delivery  of  the  copy  of  the  petition  he  may 
fully  and  concisely  state,  and  without  argument,  whether  or  not  he 
agrees  to  said  petition. 

Said  copy  shall  not  be  served  when  both  parties  join  in  the  request. 

ART.  674:.  The  judge  shall  order  that  a  public  hearing  be  granted 
when  all  the  parties  to  the  action  so  request. 

Should  there  not  be  this  agreement,  the  judge  shall  grant  or  deny 
the  request,  as  he  may  deem  best,  taking  into  account  the  nature  and 
importance  of  the  action. 

There  is  no  further  remedy  against  the  order  of  the  court  on  this 
subject. 

ART.  675.  When  the  judge  refuses  to  grant  a  public  hearing  he 
shall,  in  the  same  decision,  issue  the  orders  prescribed  in  article  668. 

Should  he  grant  a  public  hearing,  he  shall  order  that  the  record  be 
delivered  to  each  of  the  parties  in  their  order  for  their  examination, 
for  a  period  which  shall  be  not  less  than  ten  days  nor  more  than 
twenty  days,  which  period  can  not  be  extended. 

In  such  case  no  final  pleadings  shall  be  made,  nor  shall  the  parties 
be  permitted  to  file  any  other  written  allegations,  being  obliged  to  con- 
fine themselves  to  the  statement  that  they  have  the  information 
required  to  proceed  with  the  hearing. 

ART.  676.  After  the  record  has  been  returned  or  recovered,  in  a 
proper  case,  the  judge  shall  order  the  citation  of  the  parties  for  judg- 
ment, and  shall  fix  as  early  a  date  as  possible  within  the  next  eight 
days  for  the  hearing.1 

At  this  hearing  the  counsel  for  the  litigants  who  may  appear  shall 
be  heard  orally. 

ART.  677.  The  judge  shall  render  judgment  and  make  it  public 
within  twelve  days  after  the  hearing,  or  the  citation,  in  the  case  of 
article  672. 

This  period  may  be  extended  to  fifteen  days,  if  the  length  of  the 
record  exceed  one  thousand  folios.2 

1  When  citation  for  judgment  is  not  made  an  appeal  lies  for  breach  of  form,  and 
not  for  breach  of  law. — Decision  of  October  17,  1883. 

2  A  judgment  is  not  final  which  not  only  does  not  put  an  end  to  the  action,  but 
designates  where  it  may  be  continued  and  where  the  rights  alleged  may  be  argued. — 
Decision  of  January  20,  1883. 

The  reservation  of  rights  made  in  a  judgment  can  not  be  said  to  give  or  deprive 
persons  of  rights. — Decision  of  March  17,  1883. 

A  decision  which  does  not  adjudge  without  evidence  does  not  violate  this  law. — 
Decision  of  April  10,  1883. 


LAW    OF    CIVIL    PROCEDURE.  143 


ART.  678.  If  an  appeal  be  taken  from  a  final  judgment  at  the  proper 
time  and  in  the  proper  manner,  the  judge,  without  any  further  pro- 
ceedings, shall  admit  the  same  both  for  review  and  a  stay  of  proceed- 
ings, and  shall  order  that  the  record  be  transmitted  to  the  higher  court, 
the  solicitors  of  the  parties  being  cited  to  appear  before  said  court 
within  twenty  days  after  the  date  of  the  citation. 

The  clerk  shall  include  the  notice  and  the  citation  in  a  single  writ, 
and  shall,  within  the  six  following  days,  transmit  the  record  to  the 
higher  court  at  the  cost  of  the  appellant.  * 

CHAPTER  III.— ACTIONS  OF  LESSER  IMPORT. 

ART.  679.  The  proceedings  in  actions  of  lesser  import  shall  be  pros- 
ecuted according  to  the  rules  established  for  an  ordinary  action  of 
greater  import  in  so  far  as  not  opposed  to  the  special  procedure  pre- 
scribed in  the  following  articles. 

ART.  680.  After  the  complaint  has  been  filed  with  the  documents  and 
the  necessary  copies  thereof,  said  complaint  shall  be  served  on  the 
defendant  or  defendants,  with  a  summons  to  appear  and  make  answer 
thereto  within  nine  days. 

ART.  681.  The  summons  shall  be  made  in  the  manner  prescribed  for 
notices,  substituting  the  writ  prescribed  in  article  274  with  a  copy  of 
the  complaint. 

There  is  no  breach  of  law  when  a  chamber  considers  documentary  and  other  evi- 
dence* together. — Decision  of  April  30,  0883. 

Principles  of  law  relating  to  public  instruments  and  to  their  efficiency  as  proof  are 
not  violated  when  the  court,  acknowledging  the  facts  certified  to  therein,  afterwards 
considers  the  efficacy  of  said  facts  according  to  the  other  data  and  reasons  upon 
which  the  litigation  is  based. — Decisions  of  November  14  and  20, 1883,  and  March  11, 1886. 

Whenever  a  decision  is  rendered  iri  favor  of  the  plaintiff,  it  is  naturally  understood 
thereby  that  the  exceptions  pleaded  by  the  defendant  are  disallowed. — Decision  of 
April  18, 1884. 

An  adjudgment  to  pay  losses  and  damages  must  be  preceded  by  the  affirmation  or 
declaration  of  the  existence  of  said  losses  and  damages. — Decision  of  June  10, 1881. 

In" order  that  an  appeal  for  annulment  of  judgment  may  be  taken  for  an  error  in 
law  in  the  consideration  of  evidence,  it  is  an  indispensable  requisite  that  some  law 
or  legal  principle  relating  to  the  value  and  efficacy  of  said  evidence  and  to  the  man- 
ner and  form  of  considering  or  weighing  the  same  be  cited  and  be  violated. — Deci- 
sion of  April  2,  1887. 

The  evidence  shall  be  weighed  by  the  adjudging  court,  and  its  decision  must  be 
observed  until  it  is  proven  that  an  error  of  fact  or  of  law  has  been  committed, 
founded  on  a  document  or  authentic  instrument  which  proves  the  error  of  the  court, 
or  which  is  in  evident  contravention  of  a  law  or  principle  of  law  which  it  is  neces- 
sary to  cite. — Decisions  of  June  22,  July  7  and  11,  1887. 

1  After  an  appeal  has  been  taken  and  is  duly  entered,  the  lapse  of  the  period  pre- 
scribed for  the  taking  of  this  appeal  is  interrupted.  If  interposed  without  the  signa- 
ture of  an  attorney,  although  it  can  not  be  acted  upon  until  this  defect  is  cured,  it 
must  be  admitted  as  soon-'as  cured,  otherwise  giving  to  the  law  an  interpretation  in 
contradiction  of  the  legal  principles  set  forth. — Decisions  of  December  17 ',  1859,  February 
29,  1860,  and  September  14,  1861, 


144  LAW    OF    CIVIL   PROCEDURE. 

ART.  682.  When,  on  account  of  the  domicile  of  the  defendant  being 
unknown,  it  is  necessary  to  notify  and  summon  him  by  edicts  in  the 
manner  prescribed  in  article  269,  a  period  of  nine  days  for  appearance 
in  action  shall  be  fixed. 

If  he  should  appear,  he  shall  be  granted  six  days  within  which  to  make 
answer,  and  upon  being  notified  of  this  order  a  copy  of  the  complaint 
and  of  the  documents,  in  a  proper  case,  shall  be  delivered  to  him. 

ART.  683.  When  there  are  two  or  more  defendants  they  may  jointly 
or  separately  make  answer  to  the  complaint  within  the  period  pre- 
scribed in  article  680,  which  shall  be  Common  for  all. 

If  any  document  exceed  twenty-five  sheets,  a  copy  thereof  need  not  be 
attached,  and  the  original  must  be  delivered.  If  the  defendants  can  not 
litigate  jointly,  the  first  of  them  shall  be  granted  the  period  above 
mentioned  and  six  days  to  each  one  of  the  others. 

ART.  684.  Whatever  be  the  form  in  which  the  summons  was  served, 
if  the  defendant  does  not  appear  within  the  period  designated,  he  shall, 
at  the  instance  of  the  plaintiff,  be  declared  in  default,  and  the  com- 
plaint being  considered  as  answered,  the  action  shall  proceed  on  its 
course,  notice  of  said  order  as  well  as  all  others  which  may  thereafter 
be  made  being  made  within  the  limits  of  the  court-room. 

ART.  685.  If  the  defendant  believes  that  an  action  of  lesser  import 
is  not  the  proper  action,  he  may  employ  the  remedy  granted  him  by 
article  491  within  the  four  days  following  the  summons  to  make 
answer  to  the  complaint. 

ART.  686.  The  defendant  shall  in  his  answer  plead  all  the  exceptions 
he  may  have  in  his  favor,  dilatory  as  well  as  peremptory,  and  the  judge 
shall  pass  upon  all  of  them  in  the  judgment,  but  he  shall  abstain  from 
deciding  upon  the  main  issue  if  he  considers  any  of  the  dilatory  excep- 
tions well  taken.1 

ART.  687.  If  the  defendant  should  present  a  counterclaim,  it  shall  be 
referred  to  the  plaintiff  in  order  that  he  may  make  answer  thereto 
within  four  days,  which  shall  be  limited  to  the  allegations  of  said 
counterclaim. 

ART.  688.  If  the  counterclaim  should  involve  an  issue  which  must 
be  heard  in  an  action  of  greater  import,  the  judge  shall  refuse  to  enter- 
tain the  same  eo  instanti  and  without  further  remedy,  without  preju- 
dice to  the  right  of  the  defendant,  which  he  may  enforce  in  the  proper 
action. 

ART.  689.  The  litigants  shall  state  in  their  respective  pleadings 
whether  they  admit  or  deny  the  allegations  contained  in  the  complaint 
or  counterclaim. 

Silence  or  evasive  answers  shall  be  considered  in  the  judgment  as  an 
acknowledgment  of  the  facts  to  which  they  relate. 

1  This  precept  is  applicable  to  actions  of  unlawful  detainer, — Decision  of  December 
19,  1884, 


LAW    OF    CIVIL    PROCEDURE.  145 

ART.  690.  If  the  parties  should  agree  as  to  the  facts,  and  no  disputed 
allegations  of  fact  are  made,  the  question  shall  be  reduced  to  an  issue 
of  law,  and  the  judge  shall,  within  the  two  days  following  the  pres- 
entation of  the  answer,  order  that  the  parties  be  cited  to  appear,  fix- 
ing as  early  a  day  and  hour  as  may  be  possible  within  the  six  days 
following. 

At  this  appearance  the  judge  shall  hear  the  parties  or  their  solic- 
itors or  counsel,  should  they  attend  the  proceedings,  and  shall  render 
judgment  within  three  days. 

ART.  691.  The  proceedings  shall  not  be  suspended  on  account  of  the 
nonappearance  of  any  of  the  litigants,  hearing  in  such  case  the  one 
who  appears. 

If  none  of  the  parties  appear  at  the  hour  and  on  the  day  fixed,  an 
entry  of  the  fact  shall  be  made,  and  the  judge  shall  consider  the 
proceedings  closed  and  render  judgment  thereon  within  the  period 
aforementioned. 

As  soon  as  appearance  is  made,  the  proper  record  thereof  shall  be 
made,  in  which  shall  be  succinctly  entered  what  the  parties  may  have 
alleged,  which  shall  be  signed  by  the  judge,  the  clerk,  and  the  persons 
interested. 

ART.  692.  If  the  parties  should  not  agree  as  to  the  facts,  or,  if 
agreed  to,  others  are  alleged  against  the  plaintiff  by  the  defendant,  the 
judge  shall  order  that  evidence  be  taken  requiring  of  each  that  within 
the  period  of  six  days,  which  time  can  not  be  extended,  they  submit 
that  which  is  to  their  interest. 

After  said  period  no  new  nor  additional  evidence  can  be  submitted.1 

ART.  693.  The  documents  included  in  some  of  the  subdivisions  of 
article  505  are  excepted  from  the  foregoing  prohibition. 

The  presentation  of  such  documents  may  be  made  in  first  instance 
during  the  period  for  the  taking  of  evidence,  and  afterwards  until  the 
citation  for  appearance  is  made;  in  second  instance,  until  a  day  is  set 
for  the  hearing. 

ART.  694.  After  the  expiration  of  the  six  days  without  any  of  the 
parties  submitting  any  evidence,  the  judge,  proceeding  according  to 
the  prescriptions  of  articles  690  and  691,  shall  order  the  parties  cited 
to  appear,  and  he  shall  render  judgment  within  three  days  thereafter. 

1  The  lack  of  personality  in  any  of  the  parties  in  a  cause  does  not  give  ground  for 
an  appeal  for  an  annulment  of  judgment  as  to  the  principal  action,  and  can  only  be 
alleged  as  a  basis  for  an  appeal  for  breach  of  form,  as  determined  by  article  693  of 
the  law  of  civil  procedure. — Decision  of  November  30,  1888. 

In  order  that  an  appeal  for  an  annulment  of  judgment  for  breach  of  'form  be 
admitted,  it  is  indispensable  that  the  petition  for  curing  the  defect  that  is  supposed 
to  have  been  committed  should  have  been  filed  at  the  proper  time,  utilizing  the 
ordinary  remedies  which  for  this  purpose  are  granted  by  the  law. — Decision  of  October 
10,  1888. 

5901 10 


146  LAW    Ol    CIVIL    FROCEDURE. 

ART.  695.  If  both  parties  or  either  of  them  should  have  submitted 
evidence,  the  judge  shall  fix  a  period  within  which  it  is  to  be  taken. 

This  period  can  not  exceed  twenty  days. 

ART.  696.  Notwithstanding  the  provisions  of  the  foregoing  article, 
if  any  of  the  testimony  is  to  be  taken  in  a  place  other  than  that  in 
which  the  cause  is  being  tried,  the  judge,  taking  into  consideration 
the  distance  and  means  of  communication,  may  extend  the  period  the 
number  of  days  necessary,  when  he  considers  that  it  is  not  possible  to 
take  the  evidence  within  the  ordinary  period.  This  extension  can  not 
exceed  ten  days. 

In  such  case  the  other  proceedings  for  the  taking  of  evidence  shall 
be  performed  within  the  period  fixed  in  the  foregoing  article. 

ART.  697.  An  extraordinary  period  for  the  taking  of  evidence  may 
also  be  granted  in  the  cases  and  with  the  requisites  prescribed  in  articles 
554  to  561. 

ART.  698.  Evidence  shall  be  taken  in  the  manner  prescribed  for 
declaratory  actions  of  greater  import. 

ART.  699.  Each  party,  within  the  period  fixed  for  the  taking  of  evi- 
dence, may  challenge  the  witnesses  presented  by  the  opposite  party 
for  the  causes  and  in  the  manner  prescribed  for  declaratory  actions  of 
greater  import,  the  extension  of  the  period  granted  by  article  664 
being  reduced  in  a  proper  case  to  five  days. 

ART.  TOO.  Upon  the  day  following  the  period  for  the  taking  of 
evidence,  or  as  soon  as  all  testimony  submitted  has  been  taken,  the  judge 
shall  ex  officio  order  that  it  be  attached  to  the  record  and  the  parties 
be  cited  to  appear,  the  evidence  in  the  meantime  being  placed  in  the 
clerk's  office  for  examination;  after  the  hearing,  should  the  interested 
parties  appear,  the  judge  shall  render  judgment  within  five  days. 

ART.  701.  Judgments  rendered  in  actions  of  lesser  import  may  be 
appealed  from  for  review  and  for  a  stay  of  proceedings. 

ART.  702.  If  an  appeal  is  filed  during  the  course  of  these  actions, 
the  judge  shall  consider  the  appeal  as  interposed  at  the  proper  time, 
without  thereby  interrupting  the  course  of  the  action. 

In  such  case  the  appeal  must  be  retaken  at  the  same  time  as  the 
appeal  from  the  final  judgment,  and  both  appeals  shall  be  admitted  for 
a  review  and  stay  of  proceedings. 

There  must  also  be  interposed  in  a  proper  case,  at  the  same  time, 
the  appeal  for  annulment  mentioned  in  article  494,  and  it  shall  be  admit- 
ted with  the  other  before  the  audiencia  of  the  judicial  district,  provided 
it  is  prepared  at  the  proper  time. 

ART.'  703.  After  the  appeal  and  the  application  for  annulment,  in  a 
proper  case,  have  been  allowed,  the  record  shall  be  forwarded  to  the 
audiencia,  the  parties  being  summoned  to  appear  ten  days  thereafter 
before  said  audiencia,  so  that,  should  they  so  desire,  they  may  allege 
their  rights. 


LAW    OF    CIVIL    PROCEDURE.  147 

ART.  704.  After  the  record  has  been  received  by  the  audiencia,  and 
the  appellant  has  appeared  in  person  or  through  a  solicitor,  within  the 
period  fixed  in  the  summons,  the  record  shall  be  referred  to  the  relator 
for  a  period  of  six  days,  in  order  that  he  may  make  an  abstract  thereof 
as  concise  as  possible.1 

ART.  705.  During  the  six  days  mentioned  in  the  foregoing  article 
the  appellee  may,  in  writing,  agree  to  the  appeal  with  regard  to  such 
points  of  the  judgment  which  he  may  consider  prejudicial,  without 
stating  his  reasons  therefor.  A  copy  of  said  instrument  shall  be 
attached  to  the  original  to  be  furnished  to  the  appellant. 

ART.  706.  Within  the  six  days  aforementioned,  any  of  the  parties 
may  petition  that  evidence  in  the  case  be  taken,  if  any  of  the  causes 
should  be  attendant  in  which  article  861  permits  it,  stating  in  the 
same  instrument  the  evidence  that  is  to  be  taken. 

The  chamber  shall  at  once  decide  what  it  deems  proper.  If  it  per- 
mits evidence  to  be  submitted,  it  shall  fix  a  period  which  can  not  be 
extended  which  it  may  consider  necessary  to  take  the  evidence,  but 
the  period  can  not  exceed  twenty  days.2 

ART.  707.  After  the  brief  has  been  prepared,  and  in  a  proper  case 
the  evidence  is  united  to  the  record,  the  latter  shall  be  delivered  to  the 
ponente  for  a  fixed  period,  not  to  exceed  six  days,  for  his  examination. 

ART.  708.  As  soon  as  the  ponente  has  examined  the  record  a  day 
shall  be  set  for  the  hearing,  and  the  parties  shall  be  cited  to  appear 
for  judgment. 

Four  days  shall  intervene  between  the  citation  and  the  hearing,  dur- 
ing which  time  the  record  shall  remain  in  the  office  of  the  secretary  in 
order  that  the  parties  may  examine  it  and  take  copies  of  the  abstract, 
should  they  so  desire. 

ART.  709.  Five  days  after  the  hearing,  at  which  the  parties,  their 
solicitors  or  attorneys,  may  discuss  the  facts  only,  judgment  shall  be 
rendered  affirming  or  reversing  the  judgment  appealed  from  or  decid- 
ing in  a  proper  case  what  may  be  proper  with  regard  to  the  annulment 
and  other  questions  submitted  for  decision  to  the  chamber. 

A  judgment  which  affirms  or  which  increases  that  renderd  in  the 
first  instance  must  include  the  taxation  of  costs  against  the  appellant. 

ART.  710.  If  the  appellant  does  not  appear  within  the  period  fixed 
in  the  summons,  the  chamber  shall  ex  officio  order  that  the  record  be 

1  If  in  the  order  the  chamber  does  not  fix  the  period  of  six  days,  and  in  conse- 
quence thereof  it  is  believed  that  an  action  of  greater  import  is  in  question,  and  the 
proceedings  are  prosecuted  as  such,  when  the  error  is  discovered  the  action  should 
be  returned  to  its  status  when  the  order  was  made;  and  if  the  chamber  does  not  so 
proceed,  and  prevents  the  taking  of  evidence,  an  appeal  for  annulment  of  judgment 
lies. — Decision  of  July  8,  1885. 

2  If  the  testimony  was  not  prepared  in  the  instrument  referred  to  in  this  article,  but 
afterwards,  the  appeal  for  annulment  of  judgment  is  not  admissible  on  the  ground 
of  its  not  having  been  admitted. — Decision  of  June  23,  1888. 


148  LAW    OF    CIVIL    PROCEDURE. 

returned  to  the  judge  of  first  instance,  in  order  that  the  judgment  be 
executed  and  that  the  costs  of  the  transmission  of  the  appeal  be  paid 
by  the  appellant,  for  which  purpose  the  amount  of  said  costs  shall  be 
noted  in  the  letter  returning  the  record. 

ART.  711.  The  nonappearance  of  the  appellee  in  the  audiencia  shall 
not  be  an  obstacle  to  the  continuation  of  the  proceedings  in  his  default. 

ART.  712.  When  the  judgment  appealed  from  has  been  affirmed  or 
reversed,  the  record  shall  be  returned  to  the  judge  of  first  instance 
with  a  certificate  of  the  decision  and  with  taxation  of  costs,  if  such 
have  been  ordered,  for  their  execution  and  enforcement. 

ART.  713.  After  the  records  have  been  received  by  the  court  of  first 
instance,  the  proceedings  prescribed  in  the  title  for  the  execution  of 
judgment,  shall  be  observed. 

CHAPTER  IV.— ORAL  ACTIONS.1 

ART.  714.  Municipal  judges  are  the  only  ones  competent  to  take 
cognizance  in  oral  actions  of  all  causes  of  action  in  which  the  amount 

1  In  place  of  this  article  see  the  royal  order  of  September  20,  1891,  which  is  given 
herewith: 

1.  In  towns  in  which  there  are  two  or  more  municipal  judges,  each  shall  take 
cognizance  of  the  matters  appertaining  to  his  district,  in  accordance  with  the  pro- 
visions of  article  435  of  the  law  of  civil  procedure,  and  subject  to  the  rules  of  compe- 
tency established  in  articles  62,  63,  and  1560,  without  the  parties  being  permitted  to 
submit  either  in  an  implied  or  express  manner  to  one  of  them  to  the  exclusion  of  the 
other. 

2.  Municipal  judges  shall  not  proceed  with  any  matter  the  cognizance  of  which 
pertains  to  another  district,  and  shall  not  issue  any  order  therein  except  one  trans- 
mitting the  papers  or  petitions  to  the  competent  court. 

Letters  rogatory  shall  be  executed  by  the  judges  in  whose  districts  the  proceedings 
referred  to  in  the  commission  are  to  be  fulfilled. 

3.  Judges  of  first  instance,  in  taking  cognizance  of  appeals,  and  chambers  of  jus- 
tice in  deciding  questions  of  competency,  shall,  in  a  proper  case,  impose  the  dfsci- 
plinary  corrections  established  in  the  law  of  civil  procedure  upon  the  secretary  of 
the  municipal  court,  who  should  not  have  entered  in  a  statement  the  circumstances 
determining  the  competency,  or  upon  the  municipal  judge  if,  said  circumstances 
having  been  entered,  he  shall  not  duly  consider  them. 

4.  In  every  municipal  court  of  a  town  in  which  there  are  two  or  more  of  said 
courts,  there  shall  be  kept  a  register  of  all  oral  actions  and  proceedings  to  avoid  liti- 
gation which  may  be  held,  in  which  there  shall  be  entered  the  date  of  the  proceed- 
ings or  act,  the  purpose  thereof,  the  names  of  the  plaintiff  and  of  the  appellant, 
their  domiciles,  the  street,  place,  or  location  of  the  estate,  whon  the  action  involves 
a  real  action,  and  any  other    data  which  may  be  necessary  to  determine  the 
competency. 

5.  For  the  purposes  of  said  register  municipal  judges  shall  furnish  a  daily  report 
to  the  presiding  judge  of  the  territorial  audiencia  of  the  oral  actions  and  proceed- 
ings to  avoid  litigation  (actos  de  conciliation)  which  may  have  been  had,  stating  the 
details  referred  to  in  the  foregoing  number  and  the  result  of  each  proceeding  or 
action. 

6.  The  presiding  judges  of  the  audiencias  shall  observe  the  greatest  care  to  secure 
a  proper  fulfillment  of  the  foregoing  provisions,  utilizing  for  this  purpose  the  powers 
granted  them  by  the  organic  law  of  the  judicial  service. 


LAW    OF    CIVIL    PROCEDURE.  149 

involved  does  not  exceed  1,000  pesetas,  although  the  claim  is  based  on 
a  document  importing  a  confession  of  judgment  (fuerza  ejecutiva). 
ART.  715.  The  following  are  excepted  from  the  foregoing  article: 

1.  Interventions  or  interpleaders  and  other  proceedings  incidental 
to  another  action,  in  which  case  the  provisions  of  article  487  shall  be 
observed. 

2.  Reconventions  in  actions  of  greater  or  lesser  import,  which  shall 
be  heard  and  decided  according  to  the  provisions  of  articles  543  and 
687. 

ART.  716.  When  the  municipal  judge  considers  himself  incompe- 
tent to  take  cognizance  of  an  action  owing  to  the  nature  of  the  case  or 
the  amount  involved,  he  shall  make  a  ruling  to  this  effect  immediately 
following  the  complaint  and  on  the  same  paper,  and  advising  the 
plaintiff  to  allege  his  rights  before  the  proper  judge  and  in  the  proper 
manner. 

An  appeal  from  this  ruling  may  be  taken  for  review  and  a  stay  of 
proceedings  to  the  judge  of  first  instance  of  the  judicial  district. 

ART.  717.  When  the  defendant  does  not  agree  as  to  the  amount 
involved  in  the  action  the  provisions  of  article  495  shall  be  observed. 

ART.  718.  The  hearing  and  decision  of  these  actions  in  first  instance 
shall  be  had  by  the  appearance  of  the  parties  before  the  municipal 
judge  in  accordance  with  the  following  articles. 

ART.  719.  The  complaint  shall  be  presented  on  ordinary  paper  and 
shall  contain: 

The  names,  domicile,  and  profession  or  trade  of  the  plaintiff  and  of 
the  defendant  or  defendants. 

The  subject  of  the  complaint. 

The  date  of  the  presentation  of  the  complaint  to  the  court. 

The  signature  of  the  person  presenting  it  or  of  a  witness  at  his 
request,  if  he  were  unable  to  sign  his  name. 

The  plaintiff  shall  present  as  many  copies  of  this  complaint,  sub- 
scribed in  the  same  manner,  as  there  may  be  defendants. 

ART.  720.  When  the  complaint,  together  with  the  copies,  has  been 
presented,  the  municipal  judge  within  two  days  shall  enter  thereon 
an  order  summoning  the  parties  to  appear,  fixing  a  day  and  hour  for 
that  purpose,  in  accordance  with  the  provisions  of  article  725. 

This  order  shall  be  communicated  to  the  plaintiff. 

ART.  721.  The  citation  of  the  defendant  to  appear  shall  be  made  by 
the  secretary  or  bailiff  of  the  court  by  delivering  to  him  a  copy  of 
the  written  complaint,  on  which  instrument,  immediately  after  the 
complaint,  the  secretary  shall  draft  the  writ  of  citation,  stating  the 
date  of  the  order  and  the  day,  hour,  and  place  fixed  for  the  appear- 
ance, with  the  admonition  that  the  action  will  be  heard  in  his  default 
if  he  does  not  appear. 

ART.  722.  The  service  of  the  complaint  and  citation  of  the  defendant 


150  LAW    OF    CIVIL    PROCEDURE. 

shall  be  entered  on  the  order  by  means  of  a  memorandum  which  the 
defendant  shall  sign,  or  a  witness  at  his  request,  should  he  be  unable  to 
do  so.  If  the  defendant  is  not  found  at  his  domicile,  the  memorandum 
shall  be  signed  by  the  person  who  receives  it,  observing  the  prescrip- 
tions of  articles  263  and  268. 

ART.  723.  When  the  defendant  resides  at  a  place  other  than  the  resi- 
dence of  the  municipal  judge  who  summons  him,  an  official  communica- 
tion shall  be  sent  to  the  judge  of  the  place  where  he  may  be  found, 
accompanied  with  a  copy  of  the  complaint  and  the  writ  of  citation,  in 
order  that  the  latter  may  be  served.  After  the  communication,  which 
shall  be  returned  without  delay  to  the  judge  who  issued  the  request, 
shall  be  entered  an  account  of  the  service  of  the  copy  and  the  citation. 

ART.  724.  When  the  domicile  of  the  defendant  is  unknown,  the  cita- 
tion shall  be  made  by  means  of  edicts,  posted  at  the  place  where  the 
action  is  pending,  and  at  his  last  place  of  residence,  in  which  case  the 
judge  may  extend  the  time  for  the  appearance,  but  not  to  exceed  the 
period  of  twenty  days. 

The  edicts  shall  also  be  published  in  the  official  periodicals  whenever 
the  judge  considers  it  necessary. 

ART.  725.  Between  the  citation  and  the  appearance  a  period  of  time 
not  less  than  twenty-four  hours  nor  more  than  six  days  must  inter- 
vene. 

In  the  cases  in  which  the  defendant  does  not  reside  at  the  place  where 
the  action  is  pending,  this  period  shall  be  extended  one  day  more  for 
every  20  kilometers  of  distance. 

ART.  726.  After  the  time  for  the  appearance  is  set  it  can  not  be 
changed  except  for  good  cause,  alleged  and  proven  before  the  munici- 
pal judge,  or  by  a  mutual  agreement  between  the  parties. 

ART.  727.  Should  the  plaintiff  not  appear  at  the  day  and  hour  fixed, 
he  shall  be  considered  to  have  abandoned  the  action,  he  being  adjudged 
to  pay  all  the  costs  and  to  indemnify  the  defendant,  who  may  have 
appeared,  for  the  losses  he  may  have  suffered. 

In  the  record  which  may  be  made,  the  judge,  after  hearing  the 
defendant,  shall,  without  further  remedy,  fix  the  amount  of  such  dam- 
ages at  a  reasonable  figure,  which  can  not  exceed  125  pesetas,  unless 
the  defendant  should  waive  his  right  thereto.  If  no  waiver  is  made, 
it  shall  be  recovered  with  the  costs  by  compulsory  process.1 

ART.  728.  Should  the  defendant  not  appear  the  action  shall  proceed 
in  his  default,  without  a  further  citation. 

ART.  729.  The  appearance  shall  be  had  before  the  judge  and  secre- 
tary on  the  day  set. 

At  said  appearance  the  parties  in  their  order  shall  allege  their 
claims  and  rights,  and  afterwards  the  pertinent  evidence  which  they 

xThe  nonappearance  in  oral  actions  is  not  an  essential  form  of  the  action  enu- 
merated in  article  1691. — Decision  of  June  11,  1885. 


LAW    OF    CIVIL    PROCEDURE.  151 

may  submit  shall  be  admitted,  the  documents  being  attached  to  the 
record. 

At  this  appearance  any  person  selected  by  the  parties  in  interest 
may  accompany  and  speak  for  them. 

A  proper  record  of  the  appearance  shall  be  made,  which  shall  be 
signed  by  all  the  persons  present  and  those  who  have  testified  as 
witnesses. 

ART.  730.  After  the  appearance,  the  judge  shall,  on  the  same  or  the 
following  day,  enter  final  judgment  at  the  end  of  the  record. 

If  the  defendant  should  institute  a  demand  in  reconvention  for  an 
amount  exceeding  1,000  pesetas,  the  judge  in  the  same  judgment  shall 
make  the  reservation  of  rights  prescribed  in  rule  4  of  article  63. 

AKT.  731.  This  judgment  may  be  appealed  from  both  for  review  and 
stay  of  proceedings  to  the  judge  of  first  instance  of  the  judicial  district, 
in  which  the  municipal  court  is  situated. 

The  appeal  may  be  taken  when  notice  of  the  judgment  is  served,  in 
which  case  the  secretary  shall  make  entry  thereof  in  the  proceeding, 
or  within  the  next  three  days  by  appearing  before  the  municipal  judge. 

ART.  732.  When  the  appeal  is  admitted,  the  record  shall  be  trans- 
mitted to  the  judge  of  first  instance  and  the  parties  shall  be  sum- 
moned to  appear,  if  they  so  desire,  within  eight  days,  in  order  to  allege 
their  rights. 

ART.  733.  Should  the  appellant  not  appear  within  said  period,  the 
appeal  shall  be  dismissed,  with  costs  taxed  against  him,  the  record  being 
ordered  returned  ex  officio  to  the  municipal  court  for  the  execution  of 
the  judgment. 

ART.  734.  Should  the  appellant  appear  within  said  time,  which 
appearance  shall  be  recorded,  the  judge  of  first  instance  shall  order  the 
parties  to  be  cited  to  appear  on  the  day  and  hour  designated  by  him, 
proceeding  according  to  the  rules  hereinbefore  established. 

Should  the  appellee  not  appear,  the  citation  shall  be  served  upon  him 
by  posting  it  within  the  limits  of  the  court-room. 

ART.  735.  After  the  appearance  is  recorded,  or  a  notice  of  nonappear- 
ance  of  the  parties  has  been  entered,  on  the  same  or  the  following  day, 
the  judge  shall  render  final  judgment,  affirming  or  reversing  the  judg- 
ment appealed  from,  taxing  the  costs  against  the  appellant  in  the  first 
case,  or  issuing,  in  a  proper  case,  the  order  of  nullity  prescribed  in 
article  495. 

There  shall  be  no  remedy  whatsoever  against  this  judgment. 

ART.  736.  After  the  judgment  has  been  rendered,  the  record  shall 
be  returned  to  the  municipal  court  within  two  days,  with  a  certified 
copy  thereof  for  its  execution. 

When  there  has  been  an  adjudgment  upon  costs,  the  clerk  shall  enter 
a  detailed  statement  thereof  at  the  foot  of  the  certified  copy,  for  their 
recovery,  if  they  have  not  been  paid. 


152  LAW    OF    CIVIL    PROCEDURE. 

ART.  737.  After  the  certified  copy  with  the  record  has  been  received 
by  the  municipal  court,  the  procedure  for  the  execution  of  judgments 
shall  be  observed,  but  the  periods  of  time  shall  be  so  reduced  that  in 
no  case  shall  they  exceed  one-half  the  time  of  those  therein  established. 

ART.  738.  If  an  intervention  of  ownership  or  better  right  be  inter- 
posed during  the  execution  of  the  judgment  relating  to  the  property 
attached,  the  same  municipal  judge  shall  decide  the  question  according 
to  the  procedure  prescribed  for  oral  actions,  when  the  value  of  the 
property  claimed  does  not  exceed  1,000  pesetas. 

Should  it  exceed  this  amount,  the  demand  in  intervention  must  be 
presented  to  the  court  of  first  instance  in  order  that  it  be  heard  accord- 
ing to  the  procedure  prescribed  for  declaratory  actions. 

In  such  case  the  judge  of  first  instance  shall  order  the  municipal 
judge  to  suspend  all  proceedings  before  him  until  judgment  in  the 
intervention  is  rendered,  if  the  intervention  related  to  ownership;  and 
if  to  a  better  right,  the  judge  shall  be  ordered  to  deposit  the  proceeds 
of  the  sale  of  the  property,  if  sold,  in  a  public  depository. 

ART.  739.  If,  in  any  of  these  actions,  any  of  the  litigants  request  to 
be  allowed  to  litigate  as  a  poor  person,  the  municipal  judge  shall  hear 
and  determine  this  issue  according  to  the  procedure  prescribed  for 
oral  actions,  hearing  the  municipal  fiscal  who  shall  be  cited  to  appear 
for  this  purpose,  and  taking  into  consideration  the  rules  prescribed  in 
articles  15  et  seq.  in  determining  the  incidental  issue. 

TITLE  III. 

INCIDENTAL  ISSUES. 

ART.  740.  Incidental  issues  which  must  be  decided  before  the  main 
issue  can  be  proceeded  with,  which  may  be  raised  in  any  kind  of  an 
action,  except  oral  actions,  and  for  which  no  special  procedure  is 
prescribed  in  this  law,  shall  be  heard  and  determined  according  to  the 
procedure  prescribed  in  this  title.1 

ART.  741.  Such  questions,  in  order  to  be  classified  as  incidental 
issues,  must  be  immediately  related  to  the  main  question  which  is  the 
object  of  the  action  in  which  they  are  raised,  or  with  the  validity  of 
the  procedure.2 

*An  issue  raised  after  the  termination  of  an  action,  and  not  during  the  course 
thereof,  can  never  be  considered  as  an  issue  incidental  to  an  action. — Decision  of  May 
27,  1890. 

2  Until  the  complaint  has  been  admitted,  the  plaintiff  has  no  personality  to  raise 
issues  incidental  to  the  question. — Decision  of  May  23,  1861. 

As  article  740  of  this  law  is  limited  to  the  definition  of  incidental  issues,  which  are. 
the  questions  raised  during  the  progress  of  an  action  and  which  are  related  to  the 
main  issue  or  to  the  validity  of  the  procedure,  the  judgment  which  decides  the  inci- 
dental issue  raised  by  a  party,  and  heard  and  decided  according  to  all  the  formalities 
of  Title  3  of  Book  2  relating  to  the  nullity  of  the  proceedings  employed  in  the  execu- 
tion of  the  judgment,  far  from  violating  the  article  cited  gives  thereto  its  full  force 
of  procedure. — Decision  of  February  16,  1889. 


LAW    OF    CIVIL    PROCEDUKE.  153 

ART.  742.  Judges  shall  ex  officio  reject  incidental  issues  not  included 
in  the  provisions  of  the  foregoing1  article,  without  prejudice  to  the 
right  of  the  parties  who  have  raised  said  issues  to  raise  the  same  ques- 
tion in  the  proper  manner. 

A  motion  for  a  rehearing  may  be  interposed  against  this  order  of 
the  court,  and,  if  not  entertained,  an  appeal  lies  for  a  review  of  the 
proceedings. 

ART.  743.  The  incidental  issues  which,  requiring  a  previous  decision, 
are  an  obstacle  to  the  continuation  of  an  action,  shall  be  heard  and 
determined  in  the  same  proceedings,  the  course  of  the  principal  action 
being  meanwhile  suspended. 

ART.  744.  In  addition  to  the  incidental  issues  expressly  mentioned 
in  the  .law,  the  following  shall  be  considered  as  included  within  the 
provisions  of  the  foregoing  article: 

1.  Incidental  issues  which  refer  to  the  annulment  of  the  proceedings 
or  of  any  order  of  the  court. 

2.  Incidental  issues  which  relate  to  the  personality  of  any  of  the 
litigants  or  his  solicitor,  based  upon  facts  arising  after  answer  to  the 
complaint  was  made. 

3.  Any  other  incidental  issue  arising  during  the  course  of  the  action, 
without  the  previous  decision  of  which  it  would  be  absolutely  impos- 
sible, de  facto  or  dejure,  to  continue  the  main  action. 

ART.  745.  Incidental  issues  which  do  not  suspend  the  prosecution  of 
the  main  action  shall  be  heard  and  determined  separately  upon  a  sepa- 
rate record,  without  suspending  the  course  of  the  principal  action. 

ART.  746.  The  separate  record  shall  be  prepared  at  the  expense  of 
the  party  who  may  have  raised  the  incidental  issue  and  shall  contain: 

1.  The  original  document  in  which  the  incidental  issue  was  raised, 
or  a  certified  copy  thereof  and  the  necessary  part  of  the  order,  if  it 
contains  other  claims. 

2.  The  original  documents  relative  to  the  incidental  issue  which 
may  have  been  presented  therewith. 

3.  A  transcript  of  such  parts  of  the  main  record  as  the  party  which 
raises  the  incidental  issue  may  designate,  including  therein  also  the 
portions  which  the  opposite  party  requests  to  be  added  thereto,  if  the 
judge  considers  them  pertinent. 

ART.  747.  Such  designation  must  be  made  by  the  party  raising  the 
incidental  issue  within  three  days  after  that  of  the  notice  of  the  ruling 
of  the  court  ordering  that  a  separate  record  be  made,  and  by  the  oppo- 
site party  within  the  three  days  following,  for  which  purpose  the 
record  shall  be  placed  in  the  office  of  the  clerk  for  examination. 

If  such  designation  be  not  made  within  said  periods,  the  clerk  shall 
at  once  prepare  the  separate  record  with  the  petition  and  documents 
mentioned  in  numbers  1  and  2  of  the  foregoing  article. 

In  every  case  a  memorandum  of  the  making  of  the  separate  record 


154  LAW    OF    CIVIL    PEOCEDUEE. 

shall  be  entered  upon  the  main  record,  and  in  the  separate  record  a 
statement  to  the  effect  that  the  solicitors  of  the  parties  have  power  to 
act  for  them  in  the  latter. 

ART.  748.  When  an  incidental  issue  has  been  interposed,  and  the 
separate  record  has  been  prepared,  in  a  proper  case,  it  shall  be  referred 
to  the  opposite  party  for  a  period  of  six  days,  in  order  that  he  may 
make  a  special  answer  to  the  incidental  issue. 

Should  there  be  several  litigants  the  same  period  shall  be  granted 
to  each  of  them  in  their  order. 

The  provisions  of  article  514  et  seq.  shall  be  observed  in  the  filing 
and  delivery  of  copies. 

ART.  749.  In  the  document  raising  an  incidental  issue  and  in  that 
containing  the  answer  thereto,  the  parties  shall,  if  they  consider  it 
necessary,  request  that  evidence  be  taken. 

ART.  750.  If  none  of  the  parties  should  request  that  evidence  be 
taken  the  judge  shall,  without  further  proceedings,  order  that  the 
record  be  submitted  to  him  for  judgment,  to  which  the  parties  shall 
be  cited  to  appear. 

ART.  751.  Evidence  shall  be  taken  in  the  incidental  issue: 

1.  When  all  litigants  have  requested  it. 

2.  When  but  one  of  the  parties  having  requested  it,  the  judge  con- 
siders it  proper. 

ART.  752.  The  period  for  the  taking  of  evidence  in  incidental  issues 
shall  not  be  less  than  ten  nor  more  than  twenty  days. 

This  period  shall  be  common  for  the  offering  and  the  taking  of  evi- 
dence, and  in  other  respects  the  provisions  for  declaratory  actions 
shall  be  observed. 

ART.  753.  An  extraordinary  period  for  the  taking  of  evidence  shall 
be  granted  only  for  such  incidental  issues  as  are  heard  and  determined 
in  a  separate  record,  and  in  those  mentioned  in  number  2  of  article  745. 

ART.  754.  The  time  for  the  taking  of  evidence  having  expired,  the 
judge,  without  the  necessity  of  the  persons  interested  requesting  it, 
shall  order  that  the  evidence  taken  be  attached  to  the  record,  and  that 
a  hearing  for  judgment  be  had,  with  a  citation  of  the  parties. 

ART.  755.  Both  in  the  case  of  the  foregoing  article  and  in  that  of 
article  750,  the  judge  shall  fix  the  first  day  possible  for  such  a  hearing 
if  any  of  the  parties  request  it  during  the  two  days  following  that  of 
the  citation. 

At  such  hearing  the  court  shall  hear  the  counsel  of  the  parties,  if 
present. 

ART.  756.  In  the  case  of  the  foregoing  article,  the  evidence  shall  be 
placed  in  the  clerk's  office  for  examination  for  the  period  from  the 
day  set  for  the  hearing  until  the  hearing  is  concluded. 

ART.  757.  The  judge  shall  render  judgment  within  five  days  after  the 
hearing,  or  after  two  days  following  that  of  the  citation  without  its 
having  been  requested. 


LAW    OF    CIVIL    PROCEDURE.  155 

This  judgment  may  be  appealed  from,  both  for  a  review  of  proceed- 
ings and  for  stay  of  execution. 

ART.  758.  The  foregoing  provisions  shall  be  applicable  to  incidental 
issues  raised  at  second  instance  and  in  appeals  for  annulment  of  judg- 
ment. 

A  petition  for  a  rehearing  before  the  same  chamber  may  be  made 
with  regard  to  the  judgments  rendered  therein.1 

ART.  759.  Within  three  days  after  the  delivery  of  the  cop}^  of  the 
petition  for  a  rehearing  to  the  other  parties  they  may  file  such  answer 
as  they  may  consider  proper, 

At  the  expiration  of  said  period  the  chamber,  after  receiving  a  report 
from  the  justice  ponente  and  without  further  proceedings,  shall  render 
the  decision  it  deems  proper. 

ART.  760.  The  only  remedy  against  decisions  of  audiencias  on  said 
petitions  for  a  rehearing  shall  be  an  appeal  for  annulment  of  judgment, 
in  the  cases  expressly  determined  in  this  law. 

Against  those  rendered  by  the  supreme  court  there  is  no  remedy 
whatsoever. 

TITLE  IV. 

PROCEEDINGS  IN  DEFAULT. 

ART.  761.  From  the  time  when  the  defendant  has  been  declared  in 
default,  in  addition  to  observing  the  provisions  of  article  281,  there 
shall  be  ordered,  if  the  opposite  party  so  requests  it,  the  seizure  of  all 
kinds  of  personal  property  and  an  attachment  of  the  real  property  to 
the  amount  considered  necessary  to  insure  that  which  is  the  object  of 
the  action.2 

ART.  762.  The  personal  property  seized  shall  be  permitted  to  remain 
in  the  possession  of  the  person  in  whose  care  or  possession  it  may  be 
found,  whether  he  be  the  defendant  or  a  third  person,  provided  that, 
in  the  opinion  of  the  judge,  he  possesses  sufficient  real  estate  to  answer 
therefor. 

Should  this  not  be  the  case,  and  if  not  furnished  when  demanded, 
the  personal  property  shall  be  placed  in  deposit  at  the  cost  and  risk  of 
the  litigant  in  default. 

ART.  763.  The  attachment  of  real  property  shall  be  made  by  issuing 
orders  in  duplicate  to  the  proper  register  of  property  to  enter  a  cau- 

1 A  petition  for  a  rehearing  may,  before  the  same  chamber,  be  made  with  regard  to 
decisions  relating  to  incidental  issues  raised  in  the  second  instance,  and  if  said  peti- 
tion be  not  made  no  appeal  for  annulment  of  judgment  can  be  taken. — Decisions  of 
January  9,  1884,  and  December  7,  1888. 

2  Even  in  actions  proceeded  with  in  default,  although  the  defendant  should  not 
have  appeared  to  plead  exceptions,  the  court  may  decide  what  it  may  deem  proper 
according  to  the  result  of  the  proceedings. — Decision  of  January  11,  1886. 


156  LAW    OF    CIVIL    PROCEDURE. 

tionary  notice  against  the  property,  with  absolute  prohibition  to  sell, 
pledge,  or  encumber  the  same. 

One  copy  of  said  order,  after  being  executed,  shall  be  attached  to 
the  record  for  the  proper  purposes. 

ART.  764.  The  seizure  or  attachment  made  as  a  result  of  a  declara- 
tion of  default  shall  continue  in  force  until  the  conclusion  of  the  action. 

ART.  765.  Whatever  may  be  the  status  of  the  action  when  the  party 
in  default  appears,  he  shall  be  admitted  as  a  party  thereto  and  the 
action  shall  continue  without  retrogression  in  any  case. 

ART.  766.  Should  the  defendant  appear  after  the  expiration  of  the 
period  for  the  taking  of  evidence  in  the  first  instance,  or  during  the 
second  instance,  his  evidence  shall  be  received  at  second  instance,  should 
he  request  it  and  if  the  issue  be  one  of  fact.1 

ART.  767.  Said  party  may  also  petition  that  the  seizure  or  attach- 
ment of  his  property  be  raised,  if  he  alleges  and  clearly  proves  that 
he  was  unable  to  appear  in  the  action  on  account  of  insuperable  force 
majeure. 

This  petition  hereon  shall  be  heard  and  determined  in  a  separate 
record  as  an  incidental  issue  without  suspending  the  course  of  the 
main  action. 

ART.  768.  Notice  of  judgment  rendered  in  the  proceedings  in 
default  shall  be  served  upon  the  party  in  default  if  he  can  be  found, 
should  the  opposite  party  demand  it.  Otherwise  he  shall  be  notified 
in  the  manner  prescribed  in  articles  282  and  283. 

The  edicts  shall  contain  only  the  title  and  the  essential  part  of  the 
judgment,  with  the  signature  of  the  judge  who  rendered  the  same,  and 
they  shall  be  published  in  the  Gaceta  of  the  general  Government  and 
in  the  Boletin  Oficial  of  the  province,  if  there  be  one. 

Said  edicts  shall  also  be  published  in  the  Gaceta  de  Madrid  when,  in 
the  opinion  of  the  judge,  the  circumstances  of  the  case  require  it. 

ART.  769.  The  provisions  of  the  foregoing  article  shall  be  applicable 
to  the  notification,  and,  in  a  proper  case,  to  the  publication  by  edicts  of 
final  judgments  rendered  in  second  instance. 

ART.  770.  The  litigant  in  default,  who  has  been  personally  notified 
of  the  final  judgment,  can  appeal  therefrom  or  request  an  annulment 
of  judgment,  if  proper,  only  within  the  legal  period.2 

ART.  771.  The  litigants  in  default,  who  have  not  been  personally 
notified  of  the  judgment,  may  also  avail  themselves  of  the  same 
remedies. 

In  such  case  the  legal  period  in  which  to  utilize  the  same  shall  com- 

1  This  article  and  the  previous  one  take  as  granted  that  the  evidence  in  the  case 
was  taken  in  the  first  instance,  and  as  this  is  not  done  in  an  executory  action  they 
naturally  are  not  applicable  thereto. — Decision  of  October  1,  1884. 

2  Notwithstanding  the  provisions  of  this  article,  a  litigant  in  default  may  avail  him- 
self of  the  other  remedies  and  incidental  issues  which  may  be  utilized  according  to 
law. — Decision  of  December  20,  1886. 


LAW    OF    CIVIL    PROCEDURE.  157 

mence  from  the  d&y  following  the  publication  of  the  judgment  in  the 
Boletin  Oficial  of  the  province,  when  there  is  one,  and  in  its  absence 
in  the  Gaceta  of  the  general  Government. 

ART.  772.  The  defendants  who  have  remained  constantly  in  default 
and  are  not  included  in  any  of  the  cases  of  the  two  foregoing  articles 
may  be  granted  a  hearing  against  the  final  judgment  which  terminated 
the  action,  in  order  to  secure  its  rescission  and  a  new  judgment  in  the 
special  cases  prescribed  in  the  following  articles. 

ART.  773.  A  defendant  who  has  been  personally  summoned,  and 
who  for  nonappearance  in  the  action  has  been  declared  in  default,  shall 
not  be  heard  against  a  final  judgment. 

The  case  is  excepted  in  which  he  fully  proves  that  during  the  entire 
time  between  the  summons  to  appear  until  the  citation  for  judgment, 
the  defendant  was  prevented  from  appearing  in  the  action  by  noninter- 
rupted  force  majeure. 

ART.  774.  In  order  that  a  hearing  may  be  granted  in  the  case  of  the 
foregoing  article,  it  is  indispensable  that  it  be  requested  and  the  evi- 
dence of  the  force  majeure  be  presented  within  four  months,  counted 
from  the  date  of  the  publication  of  the  judgment  in  the  Boletin  Ofi- 
cial  of  the  province,  where  there  is  one,  and  in  its  absence  in  the 
Gaceta  of  the  general  Government. 

ART.  775.  A  hearing  shall  be  granted  to  the  defendant  against  a 
judgment  rendered  in  default  who  had  been  summoned  by  a  writ  deliv- 
ered to  his  relatives,  members  of  his  household,  servants,  or  neighbors, 
should  the  two  following  circumstances  be  attendant: 

1.  That  said  hearing  be  requested  within  eight  months  from  the  date 
of  the  publication  of  the  judgment  in  the  Boletin  Oficial  of  the  province, 
if  there  be  one,  and  in  its  absence  in  the  Gaceta  of  the  general  Gov- 
ernment. 

2.  That  it  be  fully  proven  that  some  cause  not  imputable  to  the 
defendant  was  the  cause  of  the  summons  not  being  served  upon  him. 

ART.  776.  A  defendant  who,  by  reason  of  not  having  a  known  resi- 
dence, had  been  summoned  by  means  of  edicts,  shall  be  heard  against 
the  final  judgment  when  all  of  the  folio  wing  circumstances  are  attendant: 

1.  That  said  hearing  be  requested  within  one  year,  counted  from  the 
date  of  the  publication  of  the  judgment  in  the  Boletin  Oficial  of  the 
province,  where  there  is  one,  and  in  its  absence  in  the  Gaceta  of  the 
general  Government. 

2.  That  the  defendant  proves  that  he  was  constantly  away  from  the 
town  in  which  the  action  was  prosecuted  from  the  time  he  was  sum- 
moned thereto  until  the  publication  of  the  judgment. 

3.  That  he  likewise  proves  that  he  was  absent  from  the  town  of  his 
last  place  of  residence  at  the  time  of  the  publication  therein  of  the 
edicts. 

ART.  777.  In  all  these  cases  the  reasons  advanced  by  the  litigant  in 


158  LAW    OF    CIVIL    PKOCEDUKE. 

default  that  he  be  heard  against  the  final  judgment,  shall  be  determined 
in  accordance  with  the  procedure  prescribed  for  incidental  issues,  at 
which  the  others  interested  in  the  action  shall  be  heard. 

ART.  778.  The  audiencia  which  has  rendered  final  judgment  or  to 
whose  district  the  court  of  first  instance,  whose  judgment  has  become 
final,  pertains  shall  be  the  one  to  take  cognizance  of  these  incidental 
issues. 

Against  the  decision  thereon  declaring  that  the  litigant  in  default 
shall  or  shall  not  be  heard,  there  shall  be  no  remedy  except  an  appeal 
for  annulment  of  judgment. 

ART.  779.  In  the  cases  in  which  the  Supreme  Court  shall  have  ren- 
dered the  judgment,  it  pertains  to  the  same  to  declare  without  further 
remedy  whether  the  litigant  in  default  shall  or  shall  not  be  heard. 

ART.  780.  If  the  hearing  requested  by  the  litigant  in  default  is 
refused,  all  the  costs  of  the  incidental  issue  shall  be  taxed  against  him, 
and  the  judgment  rendered  in  the  action  shall  become  final  and  shall 
be  executed,  the  proper  orders  for  this  purpose  being  issued. 

ART.  781.  When  said  hearing  is  granted,  a  certified  copy  of  the 
decision  granting  the  same  shall  be  transmitted  for  execution  to  the 
judge  of  first  instance  who  had  taken  cognizance  of  the  action,  the 
records  being  also  returned  if  they  are  in  the  superior  court. 

In  this  case  also  shall  the  costs  of  the  incidental  issue  be  taxed 
against  the  party  who  instituted  the  same,  if  no  opposition  has  been 
made  to  said  issue  by  the  opposite  party,  or  if  the  court  considers  such 
opposition  was  made  in  good  faith. 

ART.  782.  The  hearings  granted  against  judgments  rendered  in 
default  shall  be  had  in  accordance  with  the  following  rules : 

1.  The  record  shall  be  delivered  for  eight  days  to  the  litigant  to 
whom  a  hearing  has  been  granted,  in  order  that  he  may  make  such 
allegations  and  requests  which  he  may  deem  proper,  in  the  manner 
prescribed  for  answers  to  complaints. 

2.  His  statements  shall  be  referred  for  eight  days  more  to  the  per- 
son who  obtained  the  transcript  of  the  judgment,  to  whom  copies  of 
the  instrument  and  other  documents  shall  be  delivered. 

3.  If  both  litigants  or  either  of  them  should  have  requested  that 
evidence  be  taken,  and  the  question  which  is  the  object  of  the  action 
should  be  a  question  of  fact,  the  taking  of  evidence  shall  be  ordered, 
one-half  the  periods  of  time  fixed  in  article  552  being  granted  for  the 
submission  and  taking  thereof,  without  prejudice  to  also  granting  the 
extraordinary  period  when  proper  and  when  it  is  requested. 

4.  Thereafter  the  hearing  and  determination  shall  conform  to  the 
rules  established  for  the  first  instance  of  the  proper  declaratory  action, 
with  the  ordinary  appeals,  and  appeals  for  annulment  of  judgment 
which  may  be  proper. 

ART.  783.  If  during  the  course  of  these  proceedings,  the  party  to 


LAW    OF    CIVIL    PROCEDURE.  159 

whom  the  hearing  was  granted  is  again  in  default,  a  nolle  prosequi 
shall  be  entered  and  the  judgment  which  closed  the  proceedings  in 
default  shall  become  final,  there  being  no  further  remedy  against  the 
same. 

ART.  784.  Against  final  judgments  rendered  in  oral  actions  heard 
before  municipal  judges  in  first  instance,  a  hearing  shall  also  be  granted 
to  the  defendant  adjudged  in  default,  if  all  the  following  circumstances 
are  attendant: 

1.  That  the  citation  for  appearance  in  the  oral  action  has  been  made 
by  edicts,  or  by  a  writ  delivered  to  his  relatives,  members  of  his  house- 
hold, servants,  or  neighbors. 

2.  That  he  request  the  hearing  within  three  months  from  the  noti- 
fication of  the  final  judgment  made  within  the  limits  of  the  court. 

3.  That  he  fully  prove  that  he  did  not  receive  the  writ  of  citation 
owing  to  a  cause  not  imputable  to  himself,  or  that  when  the  edicts 
were  published  he  was  absent  from  the  town  without  having  returned 
during  the  prosecution  of  the  action. 

ART.  785.  In  the  case  of  the  foregoing  article  the  judge  of  first 
instance,  to  whose  district  the  municipal  court  pertains,  shall  take  cog- 
nizance of  the  incidental  issue  according  to  the  procedure  established 
for  oral  actions,  and  shall  decide,  without  further  remedy,  whether  or 
not  the  litigant  in  default  shall  be  heard,  communicating  his  decision 
to  the  municipal  judge  for  its  fulfillment. 

ART.  786.  Final  judgments  rendered  in  default  of  the  defendant  may 
be  executed,  reserving  the  right  of  the  latter  to  petition  for  a  rescission 
of  the  judgment  or  the  hearing  mentioned  in  the  foregoing  articles. 

He  who  has  obtained  judgment,  however,  can  not  freely  dispose  of 
the  things  of  which  he  has  been  given  possession  until  the  periods 
above  mentioned  to  hear  the  litigant  have  expired. 

When  the  action  has  had  for  its  object  money  or  a  fungible 1  thing, 
it  shall  be  deposited  in  due  form,  if  the  plaintiff  does  not  give  security 
to  the  satisfaction  of  the  judge  to  be  responsible  for  the  same  in  case 
that  after  hearing  the  litigant  in  default  it  is  ordered  returned  to  him. 

In  all  cases  the  party  in  whose  favor  a  judgment  in  default  is  rendered 
may  demand  that  a  cautionary  notice  of  his  claim  be  entered  in  the 
registry  of  property. 

ART.  787.  After  the  expiration  of  the  periods  fixed,  without  the 
litigant  in  default  having  requested  a  hearing  against  the  final  judg- 
ment, the  prohibition  imposed  on  the  opposite  party  to  dispose  of  the 
thing  which  was  the  basis  of  the  litigation  shall  be  raised,  or,  in  a 
proper  case,  the  thing  on  deposit  shall  be  ordered  delivered  to  him,  or 
the  cancellation  of  the  bond,  had  one  been  furnished. 

^Fungible:  A  term  applicable  to  things  that  are  consumed  by  the  use,  as  wine,  oil, 
etc.,  the  loan  of  which  is  subject  to  certain  rules,  and  governed  by  the  contract 
called  mutuum. — Bouvier's  Law  Dictionary,  Rawle's  revision. 


160  LAW    OF    CIVIL    PROCEDURE. 

ART.  788.  A  hearing  shall  not  be  granted  to  the  litigants  in  default 
against  final  judgments  rendered  in  executory  or  possessory  actions, 
or  in  any  action  after  the  conclusion  of  which  another  action  can  be 
brought  relating  to  the  same  matter. 


TITLE  V. 

SETTLEMENTS  BY  ARBITRATORS  AND  AMICABLE  COMPOUNDERS.1 

SECTION  I. — Settlements  by  arbitrators. 

ART.  789.  Arbitrators,  who  may  be  appointed  for  the  purpose  of 
settling  litigative  questions  by  the  persons  and  in  the  cases  prescribed 
in  article  486,  must  be  lawyers,  over  twenty -five  years  of  age,  who  are 
in  the  full  enjoyment  of  their  civil  rights. 

ART.  790.  There  must  always  be  an  odd  number  of  arbitrators. 

If  the  parties  agree  upon  the  appointment  of  but  one  arbitrator  he 
shall  be  selected  by  common  consent. 

Common  consent  is  also  necessary  in  the  selection  of  all  the  arbitra- 
tors, or  at  least  of  the  third,  if  three  or  five  be  agreed  upon,  which 
number  can  not  be  exceeded. 

In  no  case  can  the  interested  parties  grant  to  a  third  person  the 
power  to  select  or  appoint  any  of  the  arbitrators. 

ART.  791.  The  compromise  must  necessarily  be  contained  in  a  public 
instrument,  and  shall  be  null  if  prepared  in  any  other  manner. 

ART.  792.  The  compromise  must  contain  under  penalty  of  nullity: 

1.  The  names,  occupation,  and  domicile  of  those  who  authorize  the 
same. 

2.  The  names,  occupation,  and  domicile  of  the  arbitrators. 

3.  The  question  to  be  submitted  to  arbitration  with  its  attendant 
circumstances. 

4.  The  period  within  which  the  arbitrators  must  render  a  decision. 

5.  The  stipulation  that  a  fine  shall  be  paid  by  the  party  who  fails  to 
comply  with  such  parts  of  the  stipulation  as  are  indispensable  to  carry 
out  the  compromise. 

6.  The  stipulation  that  another  fine  shall  be  paid  by  any  of  the 
parties  who  may  appeal  from  the  decision,  to  the  party  who  agrees 
thereto,  before  such  appeal  can  be  heard. 

7.  The  designation  of  the  place  where  the  proceedings  for  arbitra- 
tion must  be  had. 

8.  The  date  on  which  the  compromise  was  entered  into. 

1  There  are  two  sorts  of  arbitrators,  the  arbitrators  properly  so  called  and  the 
amicable  compounders.  The  arbitrators  ought  to  determine  as  judges,  agreeably  to 
the  strictness  of  law.  Amicable  compounders  are  authorized  to  abate  something 
of  the  strictness  of  the  law  in  favor  of  natural  equity. — Civil  Code  of  Louisiana,  arti- 
cles 3109,  3110. 


LAW    OF    CIVIL    PROCEDURE.  161 

ART.  793.  After  the  instrument  has  been  drafted,  the  notaiy  who 
executed  the  same,  or  the  one  who  attests  it,  shall  present  it  to  the 
arbitrators  for  their  acceptance. 

An  entry  of  the  acceptance  or  the  refusal  to  accept  shall  be  made  at 
the  end  of  the  document,  which  the  arbitrators  shall  sign,  together 
with  the  notary. 

ART.  794.  If  any  of  the  arbitrators  should  not  accept,  or  lacks  any 
of  the  qualifications  mentioned  in  article  789,  he  shall  be  substituted 
in  the  manner  prescribed  for  his  appointment. 

When  the  parties  do  not  agree  to  said  appointments,  the  compro- 
mise shall  have  no  effect. 

It  shall  also  have  no  effect  if  any  of  the  parties  fails  to  attend  the 
making  of  the  appointments  within  three  days  after  having  been 
required  to  do  so  by  the  notary,  at  the  instance  of  the  other  party.  In 
such  case,  said  party  shall  pay  to  the  latter  the  fines  stipulated,  accord- 
ing to  the  provisions  of  subdivision  5  of  article  792. 

ART.  795.  The  acceptance  by  the  arbitrators  of  their  appointment 
shall  give  the  right  to  each  of  the  parties  to  compel  them  to  comply 
with  their  duties,  under  the  penalty  of  being  liable  for  the  losses  and 
damages  which  may  be  suffered. 

ART.  796.  In  the  case  of  the  foregoing  article  the  judge  of  first 
instance  of  the  judicial  district  in  which  the  arbitration  is  or  should 
be  held,  or,  in  his  absence,  the  judge  of  the  place  where  any  of  the 
arbitrators  reside,  shall  admonish  them,  at  the  instance  of  a  legitimate 
party,  that  they  proceed  without  delay  to  the  discharge  of  their  duties, 
admonishing  them  that  they  will  be  held  liable  for  losses  and  dam- 
ages suffered. 

If  the  arbitrators  refuse  to  act,  or  allege  some  excuse,  such  refusal 
or  excuse  shall  be  heard  and  determined  according  to  the  procedure 
for,  and  with  the  remedies  allowed  in  incidental  issues,  the  period,  of 
the  compromise  being  meanwhile  suspended. 

If  the  refusal  or  excuse  is  overruled,  or  if  the  order  of  the  court  is 
complied  with,  the  party  prejudiced  may  institute  an  action  for  losses 
and  damages  against  the  arbitrator  or  arbitrators  who  may  have  caused 
the  delay,  which  shall  be  heard  in  the  court  of  first  instance,  according 
to  the  procedure  prescribed  for  the  proper  declaratory  action. 

ART.  797.  Arbitrators  may  be  challenged  only  for  causes  arising  after 
the  compromise,  or  which  were  unknown  when  it  was  agreed  upon. 

ART.  798.  Arbitrators  may  be  challenged  for  the  same  causes  as  any 
other  judges. 

The  challenge  must  be  presented  to  the  arbitrators  themselves. 

If  they  do  not  allow  the  challenge,  the  party  presenting  the  same 
may  repeat  it  before  the  judge  of  first  instance  of  the  judicial  district 
in  which  the  challenged  arbitrator  resides,  or  before  the  judge  of  the 
5190 11 


162  LAW    OF    CIVIL    PROCEDURE. 

judicial  district  of  any  of  them,  should  there  be  more  than  one  arbi- 
trator challenged. 

Until  the  challenge  is  heard  by  the  judge  of  first  instance,  the 
arbitration  proceedings  shall  be  suspended,  and  shall  continue  as  soon 
as  a  final  decision  has  been  rendered  thereupon. 

ART.  799.  The  compromise  shall  become  null: 

1.  By  the  unanimous  consent  of  those  who  agreed  to  the  same. 

2.  By  the  expiration  of  the  period  fixed  in  the  compromise  and  of 
any  extension  thereof,  in  a  proper  case,  without  a  decision  having 
been  rendered. 

If  this  should  occur  owing  to  the  fault  of  the  arbitrators,  they  shall 
be  bound  to  indemnify  any  losses  and  damages  suffered.1 

ART.  800.  Should  any  or  all  of  the  arbitrators  die,  the  interested 
parties  must  agree  to  substitute  them  in  the  manner  designated  for 
the  original  appointment,  unless  they  agree  that  the  remaining  arbitra- 
tors render  a  decision. 

The  proceedings  meanwhile  shall  be  suspended,  to  be  continued  after- 
wards at  the  stage  in  which  they  may  be. 

All  agreements  entered  into  by  the  parties  shall  be  reduced  to  a 
public  instrument,  and  if  they  do  not  agree  the  compromise  shall  be 
of  no  effect. 

ART.  801.  The  period  fixed  in  the  compromise  for  the  rendition  of 
a  decision  shall  begin  on  the  day  following  that  on  which  the  last  arbi- 
trator accepted  his  appointment,  unless  the  parties  interested  should 
have  fixed  a  day  in  the  instrument.2 

ART.  802.  The  interested  parties  may  by  common  consent  extend 
said  period,  in  a  public  instrument  supplementary  to  the  compromise. 

The  arbitrators  may  also  extend  the  period  when  such  power  has 
been  expressly  granted  them  in  the  instrument;  but  in  such  case  the 
extension  can  not  exceed  one-half  of  the  period  designated  in  the  com- 
promise, and  must  be  unanimously  agreed  upon. 

ART.  803.  The  proceedings  by  arbitration  shall  be  held  before  a 
clerk  of  a  court  of  first  instance,  selected  by  the  arbitrators,  unless  the 
interested  parties  designate  one  by  common  consent. 

ART.  804.  The  arbitrators  shall  fix  a  period  for  the  interested  parties, 
which  can  not  exceed  the  fourth  part  of  that  fixed  in  the  instrument,  to 
prepare  their  claims  and  file  the  documents  on  which  they  base  the 
same. 

If  any  of.  the  parties  in  interest  should  not  do  so,  the  proceedings 

1This  article  relates  only  to  settlements  by  arbitrators  and  not  by  amicable  com- 
pounders. — Decision  of  October  19,  1866. 

2  The  period  fixed  in  the  instrument  of  compromise  within  which  amicable  com- 
pounders  are  to  render  their  decision  is  a  continuous  period,  and  thus  holidays  can 
not  be  deducted,  unless  this  stipulation  was  made  in  the  compromise,—  Decision  of 
March  17,  1888, 


LAW    OF    CIVIL    PROCEDURE.  163 

shall  continue  in  his  default,  without  prejudice  to  the  right  to  require 
said  party  in  default  to  pay  the  fine  stipulated  for  failure  to  comply 
with  the  acts  indispensable  to  perfect  the  compromise. 

The  party  in  default  may  appear  and  be  heard  at  any  stage  of  the 
proceedings,  but  in  no  case  shall  there  be  any  retrogression  thereof. 

ART.  805.  The  claims  and  documents  which  are  presented,  shall  be 
mutually  communicated  by  the  parties  to  each  other,  by  means  of 
copies  which  are  to  be  attached  thereto,  as  prescribed  in  articles  514 
et  seq. ,  and  they  shall  be  granted  a  period  for  replying  thereto  which 
shall  not  exceed  one-fourth  of  the  time  indicated  in  the  preceding 
article  for  preparing  and  presenting  the  same. 

ART.  806.  Within  said  period  each  of  the  parties  may  impugn  the 
claims  of  the  opposite  party  and  present  the  documents  which  they 
may  consider  necessary  for  the  purpose. 

These  documents  shall  state  whether  the  taking  of  evidence  is  or  is 
not  considered  necessary  by  them. 

ART.  807.  As  soon  as  the  periods  fixed  for  the  preparation  of  claims 
and  the  answers  thereto  have  expired,  the  arbitrators  shall  take  evidence 
in  the  proceedings,  should  both  parties  have  requested  it  or  if  there  is 
not  an  agreement  between  them  as  to  facts  of  direct  and  well-known 
influence  in  the  questions  which  are  the  object  of  the  proceedings. 

ART.  808.  Although  neither  of  the  parties  may  have  requested  the 
admission  of  evidence,  the  arbitrators  may  take  it,  determining  the 
facts  to  which  it  should  be  confined. 

In  such  case  the  evidence  can  not  be  extended  to  any  other  point  at 
issue. 

ART.  809.  The  period  for  the  admission  of  evidence  can  not  exceed 
the  fourth  part  of  that  fixed  in  the  compromise. 

The  time  for  submitting  and  taking  evidence  shall  be  common  to  all 
parties,  within  which  that  relating  to  challenges,  in  a  proper  case, 
must  also  be  taken. 

ART.  810.  The  same  means  of  proof  are  admissible  in  proceedings 
before  arbitrators  as  in  declaratory  actions  of  greater  import.  The 
proceedings  requested  for  the  taking  thereof  shall  be  pursued  with  the 
same  formalities  and  in  the  same  manner. 

The  interested  parties  shall  be  allowed  to  take  copies  or  memoranda 
of  the  testimony  taken. 

ART.  811.  In  proceedings  for  the  taking  of  evidence,  which  the  arbi- 
trators themselves  can  not  perform,  they  shall  call  upon  the  judge  of 
first  instance,  who  shall  issue  mandates,  letters  rogatory,  and  other 
processes  for  the  taking  of  evidence,  which  may  be  necessary. 

ART.  812.  At  the  conclusion  of  the  period  for  the  taking  of  evi- 
dence, and  after  that  taken  has  been  attached  to  the  proceedings  had, 
the  arbitrators  shall  cite  the  parties  for  judgment. 

Before  pronouncing  judgment  they  may  hear  the  parties  or  their 


164  LAW    OF    CIVIL    PROCEDURE. 

attorneys,  if  they  believe  it  necessary,  or  the  parties  request  it,  setting 
a  day  for  the  hearing.1 

ART.  813,  The  arbitrators,  before  rendering  their  decision,  may,  in 
the  furtherance  of  justice,  order  any  of  the  proceedings  mentioned  in 
article  340. 

ART.  814.  The  arbitrators  shall  render  their  judgment  upon  all  of 
the  points  subject  to  their  decision,  within  the  period  remaining  of  the 
time  fixed  in  the  compromise  or  in  the  extension  thereof,  should  the 
same  have  been  granted. 

ART.  815.  The  judgments  of  the  arbitrators  should  be  according  to    i 
law  and  the  claims  and  evidence,  and  shall  be  rendered  in  the  manner 
and  with  the  formalities  provided  for  judgments  in  ordinary  actions. 

ART.  816.  An  absolute  majority  vote  of  the  arbitrators,  when  there 
are  more  than  one,  shall  be  sufficient  to  render  a  judgment. 

Should  there  not  be  a  majority  of  affirmative  votes,  the  vote  of  each 
arbitrator  shall  be  entered  in  the  record  in  the  form  of  a  judgment. 

The  points  upon  which  they  disagree  shall  be  submitted  to  the  judge 
of  first  instance  of  the  judicial  district,  and  his  decision  shall  be  the  judg- 
ment, whether  it  agrees  or  not  with  the  vote  of  any  of  the  arbitrators. 

ART.  817.  The  judgment  of  the  arbitrators,  or  that  rendered  by  the 
judge  of  first  instance,  in  a  proper  case,  may  be  appealed  from  for 
review  and  stay  of  proceedings  to  the  audiencia  of  the  district. 

ART.  818.  Said  appeal  must  be  taken  within  the  five  days  following 
that  of  the  notification  of  the  arbitral  judgment,  or  that  of  the  judge  of 
first  instance  in  a  proper  case. 

On  taking  the  appeal,  or  within  three  days  thereafter,  the  appellant 
must  show  that  he  has  paid  the  fine  agreed  upon  in  the  compromise,  to 
the  party  who  has  agreed  to  the  judgment,  or  deposit  the  same  in  the 
clerk's  office  for  delivery  to  him,  without  which  requisite  the  appeal 
shall  not  be  entertained  and  the  judgment  shall  become  final. 

ART.  819.  If  both  parties  shall  have  appealed  from  the  judgment, 
neither  shall  be  obliged  to  pay  the  fine. 

If  the  appellee,  after  having  received  the  amount  of  the  fine,  should 
join  in  the  appeal  to  the  superior  court,  he  shall  return  the  fine  to  the 
appellant,  with  the  legal  interest. 

ART.  820.  Against  the  orders  of  the  arbitrators  issued  during  the 
prosecution  of  the  proceedings  no  other  remedy  shall  be  allowed  thai 
that  of  a  rehearing  within  five  days. 

If  the  rehearing  be  denied,  and  if  the  request  for  a  rehearing  shoul< 
be  based  upon  some  defect  in  the  form  of  the  compromise,  or  upon  the 
procedure  which  might  affect  the  validity  of  the  proceedings,  a  peti- 
tion for  annulment  m&y  be  interposed,  together  with  the  appeal  from 
the  judgment. 


;; 


1  Article  799  of  the  former  law  did  not  require  a  citation  for  judgment,  and  th< 
Supreme  Court  had  declared  that  this  proceeding,  which  is  indispensable  at  the 
present  time,  was  not  only  unnecessary,  but  improper. — Decision  of  May  31,  1878. 


LAW    OF    CIVIL    PROCEDURE.  165 

AKT.  821.  When  the  appeal  is  allowed,  with  the  petition  for  annul- 
ment in  a  proper  case,  the  procedure  established  in  article  386  shall 
be  observed,  transmitting  the  record  to  the  audiencia  through  the 
judge  of  first  instance. 

ART.  822.  The  prosecution  of  these  appeals  shall  conform  to  the 
rules  established  for  appeals  from  final  judgments  in  actions  of  greater 
import. 

From  judgments  rendered  by  audiencias,  an  appeal  for  annulment  of 
judgment  lies  in  the  cases,  and  in  the  manner  established  for  such 
actions. 

ART.  823.  When  a  compromise  is  entered  into  for  the  purpose  of 
deciding  an  unfinished  action  pending  in  first  instance,  as  soon  as  the 
compromise  is  presented,  together  with  the  acceptance  of  their  appoint- 
ment by  the  arbitrators,  the  judge  shall  order  that  the  further  hear- 
ing of  the  proceedings  be  had  before  said  arbitrators,  the  clerk  in 
whose  office  the  records  are  located  advising  the  said  arbitrators 
thereof. 

ART.  824.  If  the  compromise  is  entered  into  in  order  to  decide  an 
action  pending  in  second  instance,  the  arbitrators  shall  continue  the 
proceedings  according  to  law,  and  their  decision  shall  have  the  same 
efl'ect  as  that  of  the  audiencia. 

ART.  825.  An  appeal  for  annulment  of  judgment  shall  lie  against 
their  decision,  in  the  cases  and  with  the  requisites  which  may  be 
proper  for  said  appeal  from  judgments  of  audiencias  in  declaratory 
actions. 

In  such  case  said  appeal  shall  not  be  allowed,  if  the  appellant,  at  the 
time  he  takes  the  same,  does  not  show  that  he  has  paid  to  the  other 
party  the  fine  agreed  upon  in  the  compromise. 

SECTION  II. — Settlement  by  amicable  compounders. 

ART.  826.  Amicable  compounders,  appointed  by  those  who  have  the 
legal  capacity  to  decide  the  questions  mentioned  in  article  486,  must 
be  men  of  legal  age,  in  the  full  enjoyment  of  their  civil  rights,  and 
know  how  to  read  and  write. 

ART.  827.  The  provisions  of  articles  790  to  796  and  articles  799  to 
802,  inclusive,  relative  to  arbitrators,  shall  be  applicable  to  amicable 
compounders  without  any  other  modification  than  the  following. 

The  compromise  must  contain,  under  the  penalty  of  nullity,  the 
details  mentioned  in  subdivisions  1,  2,  3,  4,  and  8  of  article  792. 1 

aThe  provisions  contained  in  this  article  of  the  law  are  not  applicable  to  the 
appointment  of  amicable  compounders  imposed  by  a  testator  upon  his  heirs,  because 
they  refer  to  a  voluntary  compromise  which  does  not  exist  in  the  case  mentioned  in 
which  the  appointment  of  compromisers  must  be  made,  even  though  the  heirs  do 
not  agree  as  to  the  designation  of  the  third  member. — Decision  of  July  11, 1877. 

Article  827  of  the  new  law  in  conjunction  with  article  790  expressly  authorizes  the 
submission  of  the  decision  to  a  single  amicable  cornpounder,  and  does  not  require 


106  LAW    OF    CIVIL   PROCEDURE. 

ART.  828.  These  compromises  produce  all  the  legal  effects  of  other 
obligations,  and  may  be  invalidated  for  the  same  reasons.1 

ART.  829.  The  parties  are  obliged  to  perform  all  that  may  be  neces- 
sary in  order  to  carry  out  the  stipulations  of  the  compromise.  The 
party  not  doing  so  must  pay  to  the  other  the  losses  and  damages 
thereby  caused. 

The  question  of  such  damages  shall  be  heard  before  the  judge  of 
first  instance,  and  shall  be  determined  according  to  the  procedure 
established  for  incidental  issues. 

ART.  830.  Amicable  compounders  can  not  be  challenged  except  for 
causes  arising  subsequently  to  the  compromise,  or  unknown  at  the 
time  of  its  execution. 

The  following  only  shall  be  considered  as  legal  causes  for  such  chal- 
lenge: 

1.  Interest  in  the  subject  which  is  the  object  of  the  action. 

2.  Manifest  enmity  toward  any  of  the  parties. 

ART.  831.  The  challenge  must  be  interposed  before  the  amicable  com- 

the  appointment  of  a  third  one;  but  it  does  require  that  the  number  of  arbitrators  be 
uneven.  (See  article  790.) 

The  period  within  which  amicable  compounders  are  to  render  their  decision  is 
governed  by  the  agreement  of  the  parties  contained  in  the  compromise  and  is 
counted  continuously,  as  are  all  periods  which  refer  to  the  fulfillment  of  contracts 
unless  feast  days  are  expressly  excepted. — Decision  of  March  20,  1877. 

Two  persons  in  a  private  letter  addressed  to  two  attorneys  contracted  the  obliga- 
tion to  submit  to  their  decision,  as  if  it  were  the  decision  of  amicable  compounders, 
and  one  of  said  parties  refused  to  comply  therewith ;  he  was  sued  and  a  decision  was 
rendered  declaring  that  the  compromise  was  null.  The  other  person  interested 
appealed  from  said  decision  requesting  an  annullment  thereof,  basing  his  claim  upon 
the  principle  of  pacta  sunt  servanda,  but  the  Supreme  Court  declared  that  the  appeal 
was  not  well  taken,  because  "as  article  827  of  the  law  of  civil  procedure  in  conjunc- 
tion with  articles  790  et  seq.  prescribes  that  compromises  of  this  character  must  be 
contained  in  a  public  instrument,  under  penalty  of  nullity,  and  that  said  document 
shall  contain  certain  details,  all  of  which  was  omitted  in  the  papers  herein  referred 
to,  it  is  evident  that  the  adjudging  chamber  duly  conformed  to  the  legal  precepts  in 
declaring  the  compromise  null  and  void." — Decision  of  May  28,  1888. 

1  The  compromises  of  amicable  compounders  produce  all  the  consequences  of  other 
obligations,  and,  as  in  the  latter,  the  limits  and  extension  of  the  stipulations  of  the 
parties  are  to  be  understood  and  explained  according  to  the  contents  of  the  instru- 
ment, without  extending  them  to  things  and  cases  which  are  not  expressly  included 
therein. — Decision  of  February  22,  1878. 

The  Supreme  Court  has  declared  that,  in  accordance  with  article  829,  together  with 
number  3  of  article  793  of  the  law  of  civil  procedure,  the  powers  of  amicable  com- 
pounders are  limited  by  the  will  of  the  parties  and  that  they  can  not  consider  cases  and 
things  which  have  not  been  expressly  and  finally  submitted  for  their  decision.  Ami- 
cable compounders  can  not  appeal  to  irrelevant  interpretations  for  the  purpose  of 
extending  their  powers  without  violating  the  only  substantative  law  to  which  they 
must  confine  themselves,  which  is  the  will  of  the  parties,  expressly  stated  in  the 
instrument  of  the  compromise,  the  clauses  of  which  must  be  strictly  interpreted,  as 
otherwise  the  amicable  compounders  would  decide  questions  and  cases  not  submitted 
to  them. — Decision  of  December  10,  1887. 


& 

. 


LAW    OF    CIVIL    PROCEDURE.  167 

pounders  themselves.  Should  it  not  be  admitted  by  them,  it  shall  be 
heard  in  the  manner  prescribed  in  article  798  with  regard  to  arbitrators. 

ART.  832.  Amicable  compounded  shall  decide  the  questions  sub- 
mitted to  their  decision  according  to  their  knowledge  and  belief  with- 
out being  subject  to  legal  forms. 

Their  duties  are  limited  to  the  receiving  of  the  documents  presented 
by  the  interested  parties,  hearing  said  parties,  and  rendering  judgment.1 

ART.  833.  An  absolute  majority  vote  shall  be  necessary  to  render 
judgment.  If  there  is  not  a  majority,  the  compromise  shall  be  without 
effect. 

ART.  83A.  The  judgment  must  be  rendered  before  a  notary,  who 
shall  give  notice  of  the  same  to  the  interested  parties  by  delivering  to 
them  an  authenticated  copy  thereof,  stating  the  date  of  the  notification 
and  delivery,  and  a  note  of  which  service  shall  also  be  made  at  the 
end  of  the  original  judgment,  which  shall  be  signed  by  the  interested 
parties. 

ART.  835.  From  the  judgments  rendered  b}^  amicable  compounders 
there  shall  be  no  remedy  except  that  of  an  appeal  for  annulment  of 
judgment,  for  the  reasons  and  within  the  time  and  in  the  manner  pre- 
scribed therefor  in  Title  XXI  of  this  book.2 

ART.  836.  If  the  appeal  for  the  annulment  of  judgment  is  not  allowed, 
r  if  not  interposed  in  time,  the  judgments  shall  become  final,  and,  at 


1  This  article  does  not  make  a  hearing  of  the  parties  obligatory. — Decision  of  October 
19,  1865. 

An  appeal  for  annulment  of  judgment  from  decisions  of  amicable  compounders 
does  not  lie  when  they  are  given  power  to  fix  the  amount  of  the  indemnity  due  the 
appellant  and  they  decide  that  he  is  not  entitled  to  any  indemnification. — Decision  oj 
June  12,  1893. 

When  it  is  clearly  and  definitely  agreed  that  all  doubts  which  may  arise  with 
regard  to  the  interpretation  of  a  contract  and  its  execution  are  to  be  submitted  to 
amicable  compounders  in  accordance  with  law,  claims  with  regard  to  which  there  is 
no  agreement  between  the  parties,  whether  just  or  not,  or  whether  included  in  the 
stipulations  of  the  contract  or  otherwise,  must  be  submitted  for  the  decision  of  the 
amicable  compounders. — Decision  of  December  SO,  1881. 

Should  a  compromise  have  been  made  to  the  effect  that  arbitrators  are  to  decide  as 
to  the  meaning  and  scope  of  doubtful  clauses  of  a  contract,  it  is  sufficient  for  the  parties 
to  give  a  different  interpretation  to  one  of  them  for  a  doubt  to  exist  and  give  rise  to 
proceedings  by  amicable  compounders. — Decision  of  March  29,  1886. 

The  compromise  being  limited  to  a  declaration  by  the  amicable  compounders  as  to 
whether  the  parties  are  or  are  not  entitled  to  an  indemnity  for  losses  and  damages, 
an  award  which  taxes,  liquidates,  and  orders  said  indemnity  to  be  paid  is  null  accord- 
ing to  law. — Decision  of  February  22,  1878. 

-  The  power  having  been  granted  to  the  parties  to  a  compromise  executed  in  1864 
to  render  the  award  without  effect  by  paying  the  fine  agreed  upon,  such  clause  con- 
stitutes a  perfect  right  based  upon  article  302  of  the  law  of  commercial  procedure, 
and  a  judgment  which  does  not  recognize  the  same  violates  this  precept,  because 
neither  the  law  relating  to  the  unification  of  the  local  laws  (fueros)  nor  the  latest 
civil  procedure  have  repealed  substantive  rights  legitimately  acquired. — Decision,  of 
March  21  1883. 


168  LAW    OF    CIVIL    PROCEDURE. 

the  instance  of  a  legitimate  party,  they  shall  be  executed  by  the  judge 
of  first  instance  in  whose  district  is  situated  the  town  wherein  the 
judgment  was  rendered,  proceeding  in  the  manner  prescribed  for  the 
execution  of  other  judgments. 

ART.  837.  In  order  to  request  the  execution  of  the  judgment,  certi- 
fied copies  of  the  compromise  and  of  the  arbitral  judgment  shall  be 
presented,  issued  by  the  notary  who  authenticates  the  same. 

After  the  twenty  days  have  elapsed  prescribed  in  this  code  for  the 
appeal  for  the  annulment  of  judgment  against  judgments  rendered  by 
amicable  compounders,  the  judge  shall  order,  if  requested,  the  execution 
of  the  judgment;  but  if  the  judgment  debtor  proves  that  an  appeal  for 
the  annulment  of  the  judgment  has  been  taken  and  admitted,  the  judge 
shall  at  his  instance  annul  and  suspend  all  proceedings  relating  to  the 
execution,  taxing  the  cost  against  him  who  requested  execution,  unless 
he  should  have  given  the  bond  prescribed  in  the  following  article. 

ART.  838.  The  judge  shall  also  order  the  execution  of  the  judgment 
of  the  amicable  compounders  immediately  after  they  have  rendered 
the  same,  and  even  though  an  appeal  for  annulment  of  judgment  has 
been  taken  and  allowed,  providing  that  he  who  requests  the  execution 
of  the  judgment  should  furnish  security  sufficient,  in  the  opinion  of 
the  judge,  to  cover  what  he  may  have  received  and  to  pay  the  costs,  in 
case  that  the  annulment  of  the  judgment  should  be  declared. 


TITLE  VI. 

THE  SECOND  INSTANCE.1 

SECTION  I. — General  provisions. 

ART.  839.  Every  appellant  must  appear  before  the  appellate  court 
within  the  period  fixed  in  the  summons. 

If  he  does  not  do  so  the  appeal  shall  be  dismissed  at  the  expiration 
of  said  period,  without  the  necessity  of  having  default  entered,  and  the 
judgment  or  ruling  appealed  from  shall  become  final  without  further 
remedy.2 

1  See  footnote  No.  2,  page  3,  under  Imtancia. 

2  A  petition  for  a  review  may  be  made  against  an  order  declaring  that  an  appeal  has 
been  abandoned,  in  accordance  with  article  890. — Decision  of  March  26,  1866.     An 
appeal  is  not  considered  as  abandoned  until  the  court  so  declares. — Decision  o/Aj>r!l6, 
1864.     It  is  not  necessary  for  the  chamber  to  cite  the  parties  to  enter  the  appeal, 
because  if  the  appellant  does  not  appear  within  the  period  of  the  summons  the  appeal 
shall  be  declared  abandoned  upon  the  first  request  of  the  appellee  for  an  entry  in 
default. — Decision  of  April  24,  1869.     At  the  present  time  a  request  for  a  declaration 
of  default  is  not  necessary. 

Powers  of  a  court  after  an  appeal  for  a  review  and  for  a  stay  of  proceedings  has  been 
allowed. — In  an  appeal  for  annulment  of  judgment,  in  which  articles  70  and  838 
of  the  law  of  civil  procedure  of  1855  (383,  388,  and  840  of  that  of  1881)  and  law  26, 


LAW    OF    CIVIL    PEOCEDUEE.  169 

ART.  840.  In  cases  in  which,  an  appeal  having  been  allowed  for 
review  only,  the  appellant  is  furnished  a  certified  copy  thereof  to  per- 
fect it,  the  audiencia  shall  not  allow  the  appeal  and  shall  declare  it 
dismissed  without  the  necessity  of  having-  default  entered  if  the  appel- 
lant appears  after  the  fifteen  days  fixed  in  article  392. 

The  same  shall  take  place  with  regard  to  the  remedy  of  complaint 
referred  to  in  article  398. 

ART.  841.  In  all  cases  wherein  an  appeal  is  dismissed,  the  costs  thereof 
shall  be  taxed  against  the  appellant,  and  the  order  taxing  the  same 
shall  be  communicated  to  the  inferior  judge  with  a  return  of  the 
record,  in  a  proper  case,  for  the  proper  purposes. 

An  entry  shall  be  made  on  the  order  returning  the  record,  by  the 
secretary,  of  the  fees  due  and  the  amount  to  be  paid  for  the  official 
stamped  paper  which  may  have  been  used  according  to  the  provisions 
of  the  second  paragraph  of  article  248,  in  order  that  said  amounts  may 
be  demanded  of  the  appellant. 

ART.  842.  If  the  appellee  does  not  appear  before  the  superior  court, 
the  proceedings  shall  follow  the  regular  course,  and  orders  issued 
therein  shall  be  posted  within  the  limits  of  the  court  room. 

Should  he  appear  later,  he  shall  be  admitted  as  a  party  to  the  action, 
and  all  subsequent  proceedings  shall  be  communicated  to  him  or  to  his 
solicitor  without  retrogressing  in  the  proceedings. 

ART.  843.  If  the  appellant  is  entitled  to  prosecute  or  defend  as  a 
poor  person,  he  shall  be  considered  as  having  entered  an  appearance 
in  time  before  the  superior  court,  if  within  the  period  fixed  in  the  sum- 
mons he  appears  personally  or  through  another  person  and  requests 
that  an  attorney  and  solicitor  be  appointed  ex  officio  to  take  charge  of 
his  defense. 

The  same  petition  may  be  made  when  he  is  summoned,  in  which  case 
the  clerk  shall  make  an  entry  of  the  fact  in  the  proceedings. 

In  these  cases  the  court  shall  make  the  appointments,  if  he  is  entitled 
to  prosecute  or  defend  as  a  poor  person,  and  the  solicitor  appointed 
ex  officio  shall  be  served  with  all  proceedings  as  the  representative  of 
the  appellant. 

ART.  844.  An  appellee  who  has  the  same  privilege  may  in  like  man- 
Title  XXIII,  Partida  3,  were  cited  as  violated,  the  supreme  court,  in  allowing  the 
appeal,  stated: 

' '  That  as  soon  as  an  appeal  is  allowed  for  a  review  and  for  a  stay  of  proceedings,  the 
adjudging  court  shall  absolutely  cease  to  take  cognizance  of  the  proceedings,  only 
retaining  powers  of  coercion  to  oblige  the  appellant  to  furnish  the  means  necessary 
to  perfect  the  appeal,  if  he  does  not  abandon  it  expressly  and  finally,  and  that  the 
court  ad  quern  is  the  only  one  which  is  competent  to  declare  the  appeal  abandoned 
after  it  has  been  allowed." — Decision  of  April  29,  1882. 

The  lack  of  personality  in  the  solicitor  of  the  appellee  does  not  produce  the  effect 
of  annulling  a  ruling  declaring  an  appeal  to  be  abandoned,  because  it  could  be  made 
without  a  prior  entry  of  default. — Decision  of  December  31,  1881 . 


170  LAW    OF    CIVIL    PROCEDURE. 

ner  request  the  appointment  of  an  attorney  and  solicitor  ex  qffi.-cio  at 
any  stage  of  the  appeal. 

ART.  845.  An  appellant  may  abandon  the  appeal  at  any  stage  of  the 
proceedings,  on  the  payment  of  the  costs  incurred  by  the  opposite  party 
thereby. 

In  order  to  consider  an  appeal  as  abandoned,  it  is  necessary  that  the 
solicitor  present  a  special  power  of  attorney,  or  that  the  litigant  inter- 
ested ratifies  said  abandonment  under  oath  in  the  instrument.1 

ART.  846.  Within  the  three  days  following  the  delivery  of  the  copy 
of  the  petition  to  abandon  the  appeal,  the  appellee  may  impugn  the 
same  on  the  ground  of  the  insufficiency  of  the  power  of  attorney  or 
lack  of  personal  capacity  on  the  part  of  the  litigant,  which  defects,  if 
true,  the  audiencia  shall  order  to  be  cured  within  a  short  period  fixed 
for  said  purpose. 

If  this  period  should  elapse  without  its  having  been  done,  the  appeal 
shall,  at  the  request  of  the  appellee,  proceed  in  its  regular  course. 

ART.  847.  After  the  defects  have  been  cured,  or  when  the  appellee 
does  not  impugn  the  petition,  the  audiencia  shall,  without  further 
proceedings  or  remedy,  consider  the  appellant  to  have  abandoned  the 
appeal,  taxing  the  costs  upon  him,  and  thus  make  the  judgment 
appealed  from  final,  and  order  that  notice  thereof  be  communicated  to 
the  inferior  judge,  with  the  return  of  the  record,  in  a  proper  case. 

ART.  848.  If  the  appellee  should  desire  to  continue  with  the  appeal, 
and  therefore,  within  the  three  days  prescribed  in  article  846  should 
object  to  the  abandonment  thereof,  the  audiencia  shall  permit  the  appel- 
lant to  withdraw,  and  tax  all  costs  against  him  incurred  up  to  that  time, 
proceeding  with  the  appeal  for  the  purpose  of  determining  such  points 
of  the  judgment  which  relate  to  the  concurrence  of  the  appellee. 

The  same  action  shall  be  taken  if  the  appellee  within  said  period 
should  state  that  he  concurs  in  the  appeal,  in  the  event  that  the  with- 
drawal of  the  appellant  took  place  before  that  stage  of  the  action  in 
which  said  remedy  could  be  employed  according  to  articles  857  and 
891.2 

ART.  849.  As  soon  as  a  judgment  rendered  on  an  appeal  becomes 
final,  it  shall  be  communicated  to  the  inferior  judge  for  execution  at 
the  cost  of  the  appellant  by  means  of  a  certified  copy  and  letters 
mandatory. 

If  there  has  been  an  adjudgment  upon  costs  the  same  shall  first  be 
taxed. 

ART.  850.  The  certified  copy  referred  to  in  the  foregoing  article 

*A  court  can  not  consider  an  appeal  as  abandoned,  even  though  the  appellee  con- 
sents to  all  the  petitions  of  the  appellant,  without  the  previous  conformity  of  the 
latter  with  said  declaration. — Decision  of  May  29,  1888. 

2  When  the  appellee  concurs  in  the  appeal,  it  can  not  be  considered  that  the  judg- 
ment has  been  accepted  by  him. — Decision  of  December  14,  1865. 


LAW    OF    CIVIL    PROCEDURE.  171 

shall  contain  the  final  judgment,  and,  in  a  proper  case,  the  taxation 
and  approval  of  costs. 

A  memorandum  of  said  certified  copy  shall  be  made  in  the  office  of 
the  clerk  of  the  audiencia  and  a  literal  copy  thereof  shall  be  entered 
in  its  register. 

AKT.  851.  A  transcript  of  the  final  judgment  in  the  action  shall  also 
issued,  with  the  formalities  and  in  the  manner  prescribed  in  article 
73,  when  any  of  the  parties  request  it  for  the  protection  of  his  rights. 

This  writ  shall  be  issued  at  the  cost  of  the  party  requesting  it,  after 
the  opposite  party  has  been  cited  to  appear 'at  the  hearing  of  such 
request,  and  it  shall  also  be  recorded  in  the  office  of  the  clerk  of  the 
audiencia. 

AKT.  852.  Without  prejudice  to  the  issue  of  transcripts  or  to  the 
taxation  of  costs' in  a  proper  case,  the  final  judgment  shall  be  immedi- 
ately communicated  to  the  inferior  judge  for  its  execution,  if  any  of 
the  parties  request  it. 

AKT.  853.  Appeals  which  may  be  taken  from  decisions  of  municipal 
judges  to  those  of  first  instance  shall  be  governed  by  the  special  pro- 
visions therefor  without  prejudice  to  the  application  of  the  rule  pre- 
scribed in  article  839. 

SECTION  II. — Appeals  from  final  judgments  rendered  in  actions  of 

greater  import. 

ART.  854.  When  the  record  of  proceedings  has  been  received  by 
the  audiencia  receipt  thereof  shall  be  acknowledged,  and  as  soon  as  the 
appellant  has  appeared,  within  the  proper  period  and  in  due  form,  the 
record  shall  be  referred  to  the  relator  for  the  making  of  the  abstract.1 

ART.  855.  When  the  abstract  has  been  prepared,  it  shall  be  delivered 
with  the  record  to  each  of  the  parties  in  their  order  for  the  examina- 
tion of  their  attorneys,  for  a  period  not  less  than  ten  nor  more  than 
twenty  days. 

This  period  jnay  be  extended  to  thirty  days  at  the  instance  of  a 
party  only  in  case  that  the  record  exceeds  2,000  folios. 

In  such  case  the  extension  granted  to  the  appellant  shall  be  under- 
stood as  granted  also  to  the  appellee,  without  the  necessity  of  the 
latter  requesting  it. 

ART.  856.  Both  the  appellant  and  the  appellee  shall,  on  the  return  of 
the  record,  present  an  instrument  subscribed  by  an  attorney,  stating 
that  they  agree  to  the  abstract,  or  indicating  the  additions  or  cor- 
rections which  they  may  consider  necessary. 

ART.  857.  In  said  instrument  the  appellee  may  concur  in  the  appeal 
on  the  points  in  which  he  believes  himself  prejudiced  by  the  judgment. 

*rt  is  not  legal  for  parties  to  an  action  to  alter  the  essential  bases  of  an  action  or  of 
exceptions  discussed  at  first  instance,  and  thus  ignore  the- mission  which  appellate 
courts  have  according  to  law. — ])ecixioit  of  June  26,  1884- 


172  LAW    OF    CIVIL    PROCEDURE. 

Neither  before  nor  after  this  time  can  this  remedy  be  employed.1 

ART.  858.  If  any  essential  formality  has  been  omitted  in  the  first 
instance,  which  would  give  rise  to  an  appeal  for  annulment  of  judg- 
ment, and  an  appeal  based  thereon  is  disallowed,  the  interested  party 
may,  in  a  supplementary  prayer  in  the  instrument  referred  to  in  article 
856,  request  that  the  defect  be  cured. 

This  petition  shall  be  heard  and  decided  before  any  other  proceed- 
ings, and  according  to  the  procedure  prescribed  for  incidental  issues. 

Said  petition  can  not  be  interposed  when  it  has  already  been  denied 
by  a  final  order  of  the  audiencia  by  virtue  of  a  former  appeal.2 

ART.  859.  In  the  same  instrument,  the  parties  may  request  by  means 
of  a  supplementary  prayer,  that  evidence  in  the  action  be  taken,  when 
they  consider  it  necessary  and  proper,  giving  the  reasons  upon  which 
they  base  their  request.3 

ART.  860.  In  any  of  the  cases  mentioned  in  the  three  foregoing 
articles  a  copy  of  the  instrument  must  also  be  attached  for  delivery 
to  the  opposite  party. 

ART.  861.  The  taking  of  evidence  at  second  instance  can  only  be 
ordered — 

1.  In  the  case  of  article  566,  if  the  chamber  should  deem  that  the 
testimony  proposed  and  denied  in  the  first  instance  is  pertinent. 

2.  When  for  any  cause  not  iuiputable  to  the  party  requesting  the 
taking  of  evidence,  it  was  impossible  to  take  all  or  a  part  of  that 
which  was  offered  in  first  instance. 

3.  When  any  new  fact  pertinent  to  the  decision  of  the  cause  has 
arisen  after  the  termination  of  the  period  for  the  offering  of  evidence 
at  first  instance. 

4.  When  after  the  termination  of   said   period,   some   previously 
unknown  fact  of  decided  influence  in  the  action  comes  to  the  knowl- 
edge of  any  of  the  parties,  provided  that  said  party  states  under  oath 
that  he  had  no  previous  knowledge  of  said  fact. 

1  When  a  judgment  has  been  appealed  from,  even  though  it  be  only  in  one  of  its 
points,  it  is  not  resjudicata  in  any  of  the  others. — Decision  of  January  11,  1876. 

Although  the  appeal  taken  by  one  of  the  appellants  is  dismissed,  he  may  afterwards 
concur  in  the  appeal  of  the  opposite  party  (Decision  of  February  15,  1886),  his  con- 
currence having  the  same  effects  as  the  appeal  itself. — Decision  of  April  8,  1885. 

2  This  petition  must  be  heard  and  decided  according  to  the  procedure  prescribed 
for  incidental  issues,  and  the  remedies  authorized  by  article  401  must  be  employed 
against  decisions  denying  the  same. — Decision  of  March  19,  1885. 

3  In  order  that  the  taking  of  evidence  may  be  ordered  in  the  second  instance,  it  is 
indispensable  that  it  be  of  well-known  influence  in  the  action  and  that  the  party  state 
under  oath  that  he  had  no  knowledge  of  the  existence  thereof  before  the  expiration 
of  the  period  in  which  to  submit  evidence  at  first  instance.  — Decision  of  November  26, 
1885. 

In  order  that  evidence  may  be  admitted  at  second  instance,  it  is  indispensable  that 
the  requisites  of  law  therefor  have  been  fulfilled,  and  if  the  taking  of  evidence  has 
been  requested  after  the  record  has  been  ordered  to  be  heard,  the  petition  can  not  be 
allowed. — Decision  of  January  14,  1880. 


LAW    OF    CIVIL    PROCEDURE.  173 

5.  When  the  defendant  whose  default  has  been  declared  appears  in 
the  action  at  either  of  the  two  instances,  after  the  time  granted  for  the 
submission  of  evidence  in  first  instance. 

In  the  first  four  cases  the  evidence  shall  be  limited  to  the  facts 
therein  referred  to;  in  the  last  case  all  pertinent  evidence  submitted 
by  the  parties  shall  be  admitted.1 

ART.  862.  Without  the  necessity  of  taking  evidence  in  the  cause,  the 
litigants  may  request  at  any  time  between  the  delivery  of  the  record 
for  examination  until  the  citation  for  judgment: 

1.  That  the  opposite  party  be  obliged  to  make  a  single  judicial 
confession,  providing  it  be  with  reference  to  facts  which  have  not 
been  the  object  of  interrogatories  in  the  first  instance. 

2.  That  any  of  the  documents  mentioned  in  article  505  be  attached 
to  the  record  or  that  the  parties  themselves  be  required  to  present 
them.2 

1  The  submission  of  evidence  in  the  second  instance  can  take  place  only  in  the 
special  cases  mentioned  in  the  Law  of  Civil  Procedure,  and  can  not  be  submitted 
when  in  the  judgment  of  the  chamber  it  could  have  been  submitted  at  first  instance. — 
Division  of  April  5,  1879. 

The  nonreturn,  duly  executed,  of  letters  rogatory  for  the  taking  of  some  testimony 
is  imputable  only  to  the  person  interested,  because  judges  and  courts  can  not  act, 
('.<•  officio  in  civil  matters,  and,  consequently,  said  noncompliance  with  the  letters  roga- 
tory can  not  authorize  the  taking  of  evidence  in  the  second  instance. — Decision  of 
January  18,  1879. 

The  admission  of  evidence  in  the  second  instance  is  not  proper  if  it  consists  of 
documents  bearing  a  date  prior  to  that  of  the  complaint  and  answer,  which,  even 
though  they  came  to  light  subsequently,  the  oath  prescribed  in  article  506,  sub- 
division 2,  of  the  Law  of  Civil  Procedure  is  not  taken  upon  the  presentation  thereof. — 
Decision  of  October  21,  1883. 

"The  admission  of  evidence  during  the  second  instance  can  take  place  only  when 
it  could  not  be  taken  in  the  first  instance,  for  causes  not  imputable  to  the  petitioner," 
and  it  appearing  that  the  evidence  subsequently  submitted  to  the  chamber  was  not 
submitted  in  the  inferior  court,  notwithstanding  that  the  existence  and  whereabouts 
of  the  documents  were  known  at  the  time,  said  evidence  can  not  be  admitted. — 
Decision  of  A/>ri!  27,  1890. 

Although  a  litigant  should  state  under  oath  that  a  certain  fact  was  unknown  to 
him,  if  data  is  in  question  which  may  be  known  by  any  person,  his  affirmation  will 
not  be  sufficient  to  order  the  taking  of  evidence  in  the  second  instance. — Decision  of 
May  17,  1888. 

2  In  order  that  the  confession  referred  to  in  this  article  may  be  ordered  in  the 
second  instance,  it  is  necessary  for  the  party  requesting  it  to  submit  the  inter- 
rogatory of  the  questions  to  be  put  therein,  for  the  purpose  of  ascertaining  whether 
the  confession  requested  is  in  conformity  with  the  provisions  of  the  said  article. — 
Decision  of  October  16,  1889. 

Interrogatories  can  not  be  considered  proceedings  for  the  taking  of  evidence,  and, 
therefore,  are  not  admissible  in  the  second  instance  when  an  executory  action  is  in 
question. — Decision  of  September  21,  1888. 

After  the  parties  have  been  cited  for  judgment,  judges  and  courts  can  not  admit 
evidence  or  proof  of  any  character  whatsoever,  although  they  have  the  privilege  of 


174  LAW    OF    CIVIL    PROCEDURE. 

ART.  863.  When  the  appellant  requests  that  evidence  be  taken,  the 
appellee  must  reply  to  this  request  in  the  instrument  referred  to  in 
article  856. 

If  the  appellee  makes  such  request,  the  appellant  may  object  thereto 
within  the  three  days  following  the  delivery  to  him  of  the  copy  of  the 
petition  of  the  appellee. 

ART.  864.  The  chamber  shall  order  the  admission  of  evidence  with- 
out further  proceedings,  provided  that  the  parties  agree  that  it  is 
necessary  and  proper. 

ART.  865.  If  the  parties  should  not  agree  thereto,  the  record  shall 
be  referred  to  the  ponente  for  six  days,  and,  in  view  of  his  report, 
the  chamber  shall  decide  what  it  may  deem  proper  within  three  days. 

ART.  866.  There  shall  be  no  appeal  from  the  ruling  ordering  the 
taking  of  evidence. 

Against  the  ruling  denying  the  request  for  the  taking  of  evidence 
there  shall  be  granted  the  remedy  of  a  petition  for  review  before  the 
same  chamber  and,  in  a  proper  case,  an  appeal  for  annulment  of 
judgment. 

ART.  867.  With  regard  to  the  periods  and  means  of  proof  and  man- 
ner of  taking  evidence,  the  procedure  established  for  the  first  instance 
in  actions  of  greater  import  shall  be  observed. 

ART.  868.  After  the  expiration  of  the  period  for  the  taking  of  evi- 
dence, or  as  soon  as  all  that  submitted  and  admitted  has  been  taken, 
the  chamber  shall  order,  without  necessity  of  the  parties  requesting  it, 
that  the  evidence  be  attached  to  the  record  and  that  the  latter  be 
returned  to  the  relator  in  order  that  he  may  make  the  necessary  addi- 
tions to  the  abstract. 

ART.  869.  After  the  additions  to  the  abstract  have  been  made  it  shall, 
with  the  record,  be  referred  to  each  of  the  parties  for  examination  for 
a  period  of  six  days,  which  period  can  not  be  extended. 

Upon  returning  the  record,  the  parties  shall  state  whether  the}T 
agree  to  the  additions  to  the  abstract,  or  request  the  new  additions  or 
corrections  which  they  may  consider  necessary. 

ART.  870.  Both  in  the  case  of  the  foregoing  article,  as  in  that  of 
article  856,  after  the  record  has  been  returned  by  the  appellee,  it  shall 
be  referred  to  the  justice  ponente  for  a  period  equal  to  that  granted 
to  the  parties  for  their  examination,  for  the  purposes  prescribed  in 
articles  336  et  seq. 

ordering  such  evidence  to  be  taken  r-s  they  may  see  fit,  in  furtherance  of  justice. — 
Decision  of  February  22,  1862. 

The  Law  of  Civil  Procedure  authorizes  the  parties  to  demand  judicial  confession 
until  the  service  of  the  notice  of  citation  for  judgment,  and  this  would  be  absolutely 
useless  if  it  were  not  understood  that  the  same  period  is  allowed  for  the  proceedings 
after  said  judicial  confession  had  been  requested  and  granted. — Decision  of  March  <£, 
1870. 


LAW    OF    CIVIL    PROCEDURE.  175 

ART.  871.  When  the  parties  agree  to  the  abstract,  or  when  the  cor- 
rections or  additions  which  in  view  of  the  report  of  the  justice  ponente 
the  chamber  deems  proper  among  those  requested  by  the  parties,  it 
shall  order  that  the  record  be  brought  to  a  hearing,  and  cite  the  parties, 
for  judgment. 

ART.  872.  After  the  parties  have  been  summoned  and  the  hearing 
has  been  held  in  the  manner  prescribed  in  articles  321  et  seq.,  the 
chamber  shall  render  judgment  within  fifteen  days,  counted  from  the 
one  following  the  conclusion  of  the  hearing. 

ART.  873.  If  the  chamber  deems  it  necessary  to  order  any  of  the 
proceedings  referred  to  in  article  340,  in  furtherance  of  justice,  the 
period  for  rendering  judgment  shall  be  suspended  and  shall  again 
commence  as  soon  as  the  proceedings  had  have  been  attached  to  the 
record. 

ART.  874.  If  any  of  the  parties  intend  to  take  an  appeal  for  annul- 
ment ot  judgment  from  the  judgment  rendered  by  the  audiencia,  the 
proceeding  prescribed  in  title  21  of  this  book  shall  be  observed. 

If  this  appeal  is  not  prepared  and  interposed  within  the  legal  period, 
the  provisions  of  article  849  shall  be  observed. 

ART.  875.  When  the  parties  request  it,  or  when,  at  the  instance  of 
any  of  them,  the  chamber  s.o  orders,  a  written  or  printed  argument 
will  be  permitted  in  place  of  an  oral  argument. 

Such  request  must  be  made  within  the  three  days  following  that  of 
the  citation  of  the  parties  for  judgment. 

ART.  876.  If  all  of  the  interested  parties  unite  in  requesting  that  the 
argument  be  written  or  printed,  the  chamber  shall  so  order,  whatever 
be  the  character  or  importance  of  the  cause. 

Otherwise  the  opposite  party  shall  be  heard  within  three  days  upon 
any  petition  made  of  this  character,  and  if  he  does  not  agree  the  cham- 
ber shall  decide  what  it  considers  proper  in  view  of  what  both  set  forth. 

ART.  877.  In  order  that  a  written  or  printed  argument  may  be 
granted  in  the  case  of  the  last  paragraph  of  the  foregoing  article,  it  is 
necessary — 

1.  That  it  be  a  declaratory  action  of  greater  import. 

2.  That,  owing  to  its  importance,  in  the  opinion  of  the  chamber,  a 
written  argument  is  more  convenient  for  the  information  of  the  judges 
than  an  oral  argument. 

ART.  878.  The  period  within  which  a  written  or  printed  argument 
must  be  presented  shall  be  that  agreed  upon  by  the  parties,  when  they 
have  agreed  upon  such  argument;  otherwise,  the  period  fixed  by  the 
audiencia  when  passing  upon  the  request  thereon. 

ART.  879.  The  period  fixed  by  the  audiencia  can  not  be  less  than 
thirty  nor  more  than  sixty  days.  . 

Within  this  term  the  one  fixed  may  be  extended,  providing  that  the 
[mrties  agree  thereto,  or  when  the  court  for  any  just  cause  considers 
it  proper. 


176  LAW    OF    CIVIL    PROCEDURE. 

ART.  880.  The  audiencia  shall,  in  view  of  the  length  of  the  argu- 
ments, fix  a  time  for  the  printing  thereof. 

This  period  may  be  extended  when  circumstances  independent  of  the 
will  of  the  parties  require  it,  in  the  judgment  of  the  chamber. 

ART.  881.  There  shall  be  no  remedy  whatsoever  against  orders  of 
the  audiencia  permitting  written  or  printed  arguments  and  relating 
to  the  period  for  their  preparation. 

ART.  882.  In  all  cases  where  written  or  printed  arguments  are  sub- 
mitted, the  abstract  of  the  action  must  also  be  printed  and  attached 
thereto. 

ART.  883.  After  the  argument  has  been  printed,  copies  thereof  shall 
be  distributed  to  each  of  the  justices  who  are  to  take  part  in  the  deci- 
sion of  the  action,  signed  by  the  relator,  attorney,  and  solicitor  of  the 
parties,  and  another  shall  be  attached  to  the  record. 

ART.  884.  The  period  of  time  for  the  rendition  of  judgment  in  cases 
where  a  written  or  printed  argument  has  been  presented  shall  com- 
mence to  be  counted  from  the  day  following  that  on  which  the  copies 
were  delivered  to  the  justices,  a  memorandum  of  which  shall  be  entered 
upon  the  record  by  the  clerk  of  the  chamber  or  by  the  secretary. 

ART.  885.  If  the  justices  do  not  agree  upon  a  decision,  after  such 
disagreement  has  been  recorded  in  the  manner  prescribed,  copies  of 
the  argument  shall  also  be  given  to  the  justices  selected  to  adjust  the 
disagreements. 

The  period  for  the  rendition  of  judgment  shall  commence  to  be 
counted  from  the  date  of  said  delivery. 

SECTION  III. — Appeals  from  interlocutory  judgments  and  rulings  and 
in  actions  other  than  those  of  greater  import. 

ART.  886.  All  appeals,  both  from  rulings  as  well  as  from  judgments, 
except  final  judgments  in  actions  of  greater  import  (which  are  referred 
to  in  the  preceding  section),  shall  be  heard  and  determined  in  the  man- 
ner prescribed  in  this  section. 

Appeals  in  actions  of  lesser  import  are  also  excepted,  which  shall  be 
heard  and  determined  according  to  the  special  procedure  provided 
therefor. 

ART.  887.  As  soon  as  the  record  has  been  received  by  the  audiencia, 
it  shall  acknowledge  the  receipt  thereof,  and  as  soon  as  the  appellant 
has  appeared  within  the  proper  time  and  in  the  proper  manner,  it  shall 
be  referred  to  the  relator  for  the  purpose  of  preparing  an  abstract  of 
such  matters  as  may  be  pertinent  to  the  appeal. 

ART.  888.  In  cases  in  which  a  certified  copy  is  furnished  the  appel- 
lant for  the  purpose  of  perfecting  an  appeal  admitted  for  review  only 
before  the  superior  court,  the  record  shall  also  be  referred  to  the  rela- 
tor for  the  preparation  of  the  abstract  as  soon  as  the  appellant  has 
perfected  the  appeal,  should  he  do  so  within  the  legal  period. 


LAW    OF    CIVIL    PROCEDURE.  177 

ART.  889.  After  the  abstract  has  been  prepared  it  shall  be  delivered, 
together  with  the  record,  to  each  of  the  parties  in  their  order,  for 
examination  by  their  attorneys,  for  a  period  not  less  than  six  nor  more 
than  ten  days,  which  period  can  not  be  extended. 

ART.  890.  Both  the  appellant  and  the  appellee  on  returning  the 
record  shall  state,  in  an  instrument  subscribed  by  their  attorneys,  their 
agreement  to  the  abstract,  or  shall  request  the  changes  and  additions 
which  they  may  consider  proper. 

ART.  891.  In  this  instrument  the  appellee  may  concur  in  the  appeal 
in  such  portions  of  the  judgment  or  ruling  in  question  which  he  con- 
siders prejudicial  to  him. 

Neither  before  nor  after  this  stage  in  the  proceedings  can  he  employ 
this  remedy. 

ART.  892.  The  claims  referred  to  in  articles  858  et  seq. ,  when  proper, 
must  also  be  set  forth  in  said  instruments,  and,  in  a  proper  case,  the 
provisions  of  article  860  shall  be  observed. 

ART.  893.  After  the  record  has  been  returned  by  the  appellee,  it  shall 
be  referred  to  the  justice ponente  for  his  examination  for  a  period  equal 
to  that  granted  to  the  parties. 

ART.  894.  When  the  parties  have  agreed  to  the  abstract,  or  when  the 
changes  or  corrections  which,  in  view  of  the  report  of  the  justice ponente, 
the  chamber  believes  to  be  pertinent  have  been  made,  at  the  request  of 
the  parties  a  hearing  shall  be  ordered  and  the  parties  cited  to  appear. 

ART.  895.  After  the  hearing,  the  chamber  shall  render  its  decision  in 
the  form  of  a  ruling  or  judgment,  as  may  be  prescribed  for  like  decisions 
in  first  instance. 

Such  decision  shall  be  rendered  within  five  days  in  matters  as  are 
declared  preferred  by  article  321,  and  in  all  other  cases  within  eight 
days. 

ART.  896.  The  taking  of  evidence  can  be  authorized  only  in  these 
appeals  when  such  evidence  by  law  may  be  taken  in  the  first  instance, 
and  any  of  the  cases  mentioned  in  article  861  is  attendant.1 

ART.  897.  The  period  for  the  taking  of  evidence  can  not  in  such  case 
exceed  that  granted  by  law  for  the  first  instance,  and  the  chamber  may 
fix  the  time  which  it  may  consider  necessary  within  said  period,  which 
can  not  be  extended.  Evidence  shall  be  taken  in  the  same  manner  as 
prescribed  for  the  first  instance. 

ART.  898.  The  provisions  of  articles  862,  863,  864,  865,  866,  873,  and 
874  shall  also  be  applicable,  in  a  proper  case,  to  the  appeals  herein 
referred  to. 

ART.  899.  When  the  evidence  has  been  attached  to  the  record  at 
the  time  and  in  the  manner  prescribed  in  article  868,  it  shall  be  sub- 

*A  petition  for  a  rehearing  may  be  made  before  instituting  in  a  proper  case  an 
appeal  for  annulment  of  judgment  against  a  ruling  which  denies  the  admission  of 
evidence  in  the  second  instance. — Decision  of  January  29,  1886. 
5190 12 


178  LAW    OF    CIVIL    PROCEDURE. 

ject  to  examination  by  the  parties  in  the  office  of  the  relator,  or  of  the 
clerk  of  the  chamber,  for  four  days  common  to  both  parties. 

ART.  900.  Upon  the  expiration  of  this  period,  the  relator  shall  pre- 
sent his  report,  and  the  chamber  shall  order  a  hearing  with  citation  of 
the  parties  for  judgment. 

ART.  901.  Between  the  date  of  this  order  and  the  day  set  for  the 
hearing,  the  relator  shall  add  to  the  abstract  the  evidence  taken. 

TITLE  VII. 

THE  EEMEDY  OF  CIVIL  LIABILITY  AGAINST  JUDGES  AND  ASSOCIATE  JUSTICES.1 

ART.  902.  The  civil  liability  which  may  be  incurred  by  judges  and 
associate  justices,  when,  in  the  discharge  of  their  duties,  they  violate 
the  law  through  inexcusable  negligence  or  ignorance,  can  be  enforced 
only  at  the  instance  of  the  party  prejudiced  or  of  his  legal  representa- 
tives in  a  declaratory  action  and  before  the  court  immediately  superior 
to  the  one  in  which  the  liability  may  have  been  incurred.2 

ART.  903.  An  action  for  civil  liability  can  not  be  instituted  until  the 
action  or  cause  in  which  the  injury  is  alleged  to  have  been  committed 
has  been  concluded  by  a  final  judgment  or  ruling.3 

ART.  904.  Said  action  must  be  instituted  within  the  six  months 
following  that  in  which  the  final  sentence  or  ruling  was  rendered,  which 
concluded  the  action  or  cause.  After  this  period  an  action  for  civil 
liability  is  barred.4 

ART.  905.  The  person  who  has  not  employed  at  the  proper  time  the 
legal  remedies  against  the  judgment,  ruling,  or  order  in  which  it  is 
alleged  that  a  violation  of  law  was  committed,  or  who  did  not  object 

1  See  articles  400  et  seq.  of  this  law,  and  articles  8  and  260  to  266  of  the  Organic  Law. 

2  Civil  liability,  in  accordance  with  the  pro  visions  of  chap.  2,  Title  V,  of  the  Organic 
Law  of  the  Judicial  Service,  and  Title  VII,  Book  II,  of  the  Law  of  Civil  Procedure, 
presupposes  loss  or  damage,  which ,  for  the  purposes  of  the  remedy,  can  not  be  caused 
by  the  decisions  of  judges  or  associate  justices,  except  to  the  persons  who  take  a 
direct,  part  in  the  proceedings  or  action  of  which  the  former  take  cognizance  as  parties 
thereto. — Decision  of  April  21,  1884. 

Article  81  of  the  constitution,  with  regard  to  liability,  contains  only  one  precept 
which  is  to  be  extended  by  the  laws  governing  the  different  kinds  of  liabilities,  offi- 
cials liable,  and  manner  of  enforcing  said  liability,  and  as  the  Law  of  Civil  Procedure 
limits  the  liability  to  judges  and  justices  it  can  not  be  extended  to  others. — Decision  of 
January  7,  1886. 

3  The  Organic  Law  of  the  Judicial  Service,  which  established  the  remedy  of  civil 
liability  against  judges  and  associate  justices,  as  well  as  the  Law  of  Civil  Proce- 
dure at  present  in  force,  which  regulates  the  procedure  to  enforce  the  same,  forbid 
the  institution  of  an  action  for  liability  by  a  person  who  has  not  at  the  proper  time 
made  use  of  the  legal  remedies  against  the  judgment,  ruling,  or  order  which  is  sup- 
posed to  have  caused  the  injury,  or  if  he  should  not  have  objected  at  the  proper 
time  when  he  had  a  right  to  do  so. — Decision  of  November  8,  1883. 

4  This  provision  includes  private  individuals,  as  well  as  corporations  or  the  State. — 
Decision  of  February  8,  1886. 


th< 


LAW    OF    CIVIL    PROCEDURE.  179 

thereto  at  the  proper  time  during  the  course  of  the  action,  if  he  could 
have  done  so,  can  not  institute  an  action  to  enforce  civil  liability.1 

ART.  906.  To  every  complaint  in  an  action  for  civil  liability,  shall 
be  attached  a  transcript  or  certificate  containing — 

1.  The  judgment,  ruling,  or  order  in  which  the  violation  is  said  to 
ve  been  committed. 

2.  The  proceedings  which,  in  the  judgment  of  the  party,  go  to  show 
e  violation  of  law  or  of  procedure  prescribed  by  law,  under  penalty 

of  nullity,  and  that  at  the  proper  time  the  proper  remedies  or  objec- 
tions against  them  were  used. 

3.  The  judgment  or  final  ruling  which  closed  the  action  or  cause. 
ART.  907.  The  certificate  or  transcript  to  which  reference  is  made  in 

the  foregoing  article  shall  be  requested  of  the  inferior  or  superior 
court  where  the  record  is  filed. 

The  clerk  or  secretary  shall  issue  a  receipt  for  the  petition  request- 
ing the  said  documents. 

The  superior  or  inferior  court  shall  order,  under  its  liability,  that 
said  document  be  furnished  without  delay,  and  may  order  also  that 
such  details  be  added  thereto  as  may  be  deemed  necessary,  in  order 
that  the  truth  of  the  facts  may  appear. 

ART.  908.  If  ten  days,  counted  from  the  date  of  the  presentation  of 
the  petition,  should  elapse  without  said  certificate  or  transcript  being 
furnished  to  the  party,  the  petitioner  may  appeal  in  complaint  to  the 
court  which  is  to  take  cognizance  of  the  matter,  which  shall  require 
the  inferior  court  to  transmit  said  record  within  a  short  period,  or 
shall  demand  the  original  record,  should  it  consider  it  more  advisable, 
and  if  said  record  is  not  required  for  the  execution  of  the  judgment. 

In  such  cases  the  records  shall  be  exhibited  to  the  plaintiff,  or  the 
transcript  shall  be  furnished  him  in  order  that  he  may  prepare  his 
complaint,  retaining,  in  a  proper  case,  the  record  until  the  conclusion 
of  the  action  of  civil  liability. 

ART.  909.  Whatever  be  the  court  which  is  to  take  cognizance  of 
the  action,  it  shall  be  heard  and  decided  according  to  the  procedure 
prescribed  for  declaratory  actions  of  greater  import. 

ART.  910.  When  the  complaint  is  against  a  municipal  judge,  the 
judge  of  first  instance  of  the  judicial  district  to  which  the  municipal 
court  belongs,  shall  take  cognizance  thereof. 

Against  the  judgment  rendered  by  said  judge,  an  appeal  lies  to  the, 
audiencia  for  review  and  stay  of  proceedings.2 

1  This  article  does  not  allow  the  remedy  of  civil  liability  until  the  remedies  allowed 
by  law  for  the  purpose  of  correcting  a  violation  of  law,  which  is  supposed  to  have 
been  committed,  have  been  utilized. — Decision  of  January  16,  1888. 

2  The  parties  can  not  make  use  of  any  other  means  than  those  prescribed  in  this 
title  for  the  execution  of  judgments. — Decision  of  October  22,  1888. 

The  delivery  of  a  thing  which  is  the  subject  of  an  action  is  a  natural  consequence 
of  the  ownership  which  is  invoked. — Decision  of  March  21,  1888. 
The  judge  who  has  rendered  a  judgment  which  has  been  accepted,  has  the  power 


180  LAW    OF    CIVIL    PROCEDURE. 

ART.  911.  The  civil  chambers  of  audiencias  shall  take  cognizance, 
in  original  and  only  instance,  of  actions  for  civil  liability  instituted 
against  judges  of  first  instance  within  their  territory. 

Against  the  judgments  rendered  by  the  same  in  these  actions  the 
only  remedy  is  an  appeal  for  annulment  of  judgment. 

ART.  912.  The  third  chamber  of  the  supreme  court  shall  take  cogni- 
zance in  original  and  only  instance,  and  without  further  remedy,  of  such 
actions,  when  instituted  against  justices  of  an  audiencia. 

ART.  913.  In  the  case  of  the  foregoing  article,  after  the  complaint 
has  been  filed,  the  chamber  shall  order  that  the  audiencia  be  required 
to  transmit  thereto  a  certified  copy  of  the  reserved  votes,  or  a  statement 
that  there  are  none,  as  the  case  may  be. 

When  such  certificate  has  been  received,  it  shall  be  attached  to  the 
record,  and  if  it  should  appear  therefrom  that  there  was  some  reserved 
vote  on  the  resolution  which  is  the  subject  of  the  action  for  liability,  it 
shall  be  referred  to  the  plaintiff  for  a  period  of  six  days,  in  order  that 
he  may  state  whether  he  desires  to  prosecute  his  complaint,  or  whether 
he  will  amend  the  same  in  so  far  as  it  relates  to  the  justice  or  justices 
who  may  have  reserved  their  votes. 

ART.  914.  When  the  complaint  is  instituted  against  the  justices  of  a 
chamber  of  the  supreme  court,  all  the  other  justices  of  the  same  court 
shall  take  cognizance  thereof  in  first  and  last  instance,  without  further 
remedy,  organized  as  a  chamber  of  justice,  with  the  presiding  judge 
and  secretary  of  the  supreme  court  acting  in  like  capacity. 

ART.  915.  In  every  case,  the  judgment  which  absolves  the  defendant 
of  civil  liability,  shall  tax  all  the  costs  against  the  plaintiff,  and,  if  the 
judgment  be  wholly  or  partly  for  the  plaintiff,  the  costs  shall  be  taxed 
against  the  defendants.1 

In  the  last  case  a  true  copy  of  the  judgment,  duly  authenticated, 
shall  be  transmitted  to  the  colonial  department,  for  the  proper 
purposes. 

ART.  916.  In  no  case  can  a  judgment  rendered  in  an  action  for  civil 
liability  alter  the  final  judgment  which  has  been  rendered  in  the  action 
or  cause,  in  which  the  violation  is  alleged  to  have  been  committed. 

ART.  91 7.  When  an  action  of  civil  liability  has  been  admitted,  and 
as  soon  as  final  judgment  has  been  rendered  thereon,  the  record  shall  be 
transmitted  to  the  public  prosecutor,  in  order  that,  if  there  should 
be  grounds  for  instituting  an  action  for  criminal  liability,  he  may 
institute  and  propose  what  he  may  deem  proper. 

to  carry  out  the  corresponding  execution. — Decisions  of  November  19,  1861,  and  May  5, 
1863. 

An  appeal  for  annulment  of  judgment  does  not  lie  against  orders  relating  to  the 
execution  of  a  judgment,  unless  said  judgment  is  modified  or  altered,  or  new  declara- 
tions of  rights  are  made  in  said  orders. — Decisions  of  May  14,  1867,  and  June  9, 1870. 

The  declarations  contained  in  a  judgment  can  in  no  manner  whatsoever  affect 
persons  who  have  not  been  parties  to  the  action. — Decision  of  May  17, 1883. 

1  Law  8,  Title  XXII,  Partida  3,  relating  to  the  adjudgment  upon  costs  is  not  appli- 
cable to  this  case. — Decision  of  November  8,  1883. 


LAW    OF    CIVIL    PROCEDURE.  181 

TITLE   VIII. 

EXECUTION   OF  JUDGMENTS.1 
SECTION  1. — Judgments  rendered  by  Spanish  courts  and  judges. 

ART.  918.  As  soon  as  a  judgment  is  final,  the  execution  thereof  shall 
be  proceeded  with,  always  at  the  instance  of  a  party,  and  by  the 
judge  or  court  who  may  have  taken  cognizance  of  the  action  in  first 
instance. 

ART.  919.  In  case  of  an  appeal,  as  soon  as  the  certificate  of  final 
judgment  has  been  received  by  the  lower  court,  it  shall  order  that  it 
be  enforced,  and  the  parties  shall  be  notified  thereof,  in  order  that  they 
may  make  such  requests  as  they  may  consider  proper  in  connection 
therewith. 

ART.  920.  Should  the  judgment  order  the  payment  of  a  net  and 
determined  sum,  an  attachment  of  the  property  of  the  judgment  debtor 
shall  always  be  issued,  without  the  necessity  of  a  prior  personal  requisi- 
tion upon  said  debtor,  in  the  form  and  in  the  order  prescribed  for 
executory  actions. 

For  such  purpose,  the  interest  on  any  specific  sum  shall  be  considered 
a  net  amount,  when  the  rate  thereof  and  term  for  which  it  is  to  be  paid 
is  fixed  in  the  judgment. 

ART.  921.  After  the  attachment  has  been  made,  the  appraisement 
and  sale  of  the  property  in  question,  and  payment,  in  a  proper  case, 
shall  be  made  entirely  in  accordance  with  the  rules  established  for  com- 
pulsory process  after  an  executory  action. 

ART.  922.  If  the  judgment  orders  the  doing  or  refraining  from 
something,  or  the  delivery  of  a  thing  or  uncertain  amount,  the  judg- 
ment shall  be  executed,  employing  the  means  necessary  for  the  pur- 
pose and  referred  to  in  the  following  articles. 

In  all  these  cases,  if  the  writ  of  execution  can  not  be  immediately 
complied  with,  whatever  be  the  cause  which  prevents  it,  an  attachment 
of  the  property  may  be  ordered  at  the  instance  of  the  creditor,  in  suffi- 
cient amount,  in  the  opinion  of  the  judge,  to  secure  the  amount  of  the 
judgment  and  the  costs  of  the  execution. 

The  judgment  debtor  may  avoid  the  attachment  by  furnishing  secu- 
rity sufficient  in  the  opinion  of  the  judge. 

ART.  923.  If  the  party  adjudged  to  do  something  should  fail  to  per- 
form the  same  within  the  period  fixed  by  the  judge,  it  shall  be  done  at 
his  expense;  and  if  it  be  a  personal  act  which  can  not  be  performed  in 
this  manner,  it  shall  be  understood  that  he  prefers  to  pay  damages. 

If  the  amount  of  these  damages,  in  the  case  of  nonperformance,  has 
been  fixed  in  the  judgment,  the  provisions  of  article  920  relating  to  the 

According  to  article  1971  of  the  Civil  Code  "The  period  for  the  prescription  of 
actions  to  demand  the  fulfillment  of  obligations  declared  in  a  judgment,  shall  begin 
from  the  day  the  judgment  became  final." 


182  LAW    OF    CIVIL    PROCEDURE. 

execution  of  a  judgment  in  which  there  is  an  adjudication  of  a  specific 
amount  shall  be  observed. 

Otherwise  the  provisions  of  articles  927  et  seq.  shall  be  observed. 

ART.  924.  If  a  person  ordered  to  refrain  from  doing  something 
should  not  obey  the  order,  it  shall  be  understood  that  he  prefers  to 
pay  damages,  which  shall  be  paid  to  the  person  in  whose  favor  judg- 
ment was  rendered,  in  the  manner  prescribed  in  the  foregoing  article. 

ART.  925.  When,  by  virtue  of  a  judgment,  some  real  estate  is  to  be 
delivered  to  the  successful  litigant,  he  shall  be  placed  in  immediate 
possession  thereof,  observing  for  this  purpose  the  proper  proceedings 
which  the  litigant  may  request.1 

The  same  shall  be  done  with  regard  to  personal  property,  if  it  can 
be  found. 

Otherwise  the  proceedings  prescribed  in  articles  927  et  seq.  for  the 
payment  of  damages  shall  be  observed.2 

ART.  926.  If  a  judgment  orders  the  payment  of  a  fixed  amount  and 
another  amount  not  fixed,  the  payment  of  the  fixed  amount  may  be 
enforced  without  the  necessity  of  delaying  until  the  second  amount  is 
determined. 

ART.  927.  When  the  judgment  orders  the  payment  of  losses  and 
damages  without  specifying  the  amount  thereof,  whether  the  basis 
therefor  be  established  in  the  judgment  or  not,  the  judgment  creditor 
shall  present  with  the  petition  for  the  execution  of  the  judgment  a 
statement  of  such  losses  and  damages  and  of  their  amount,  calculated, 
in  a  proper  case,  according  to  the  bases  established.3 

ART.  928.  A  copy  of  said  statement  and  of  the  instrument  shall  be 
delivered  to  the  judgment  debtor,  in  order  that  within  the  period  of 
six  days  he  may  answer  what  he  may  deem  proper. 

ART.  929.  Should  the  debtor  agree  to  the  statement  of  the  losses  and 
damages  and  to  the  amount  thereof,  the  judge  shall  approve  the  same 
without  further  remedy,  and  the  amount  agreed  upon  shall  be  collected 
in  the  manner  prescribed  in  articles  920  et  seq. 

If  the  debtor  does  not  make  any  answer  within  the  period  mentioned 
in  the  foregoing  article,  he  shall  be  understood  as  agreeing  to  the 
amount. 

1  This  is  understood  if  it  is  in  the  possession  of  the  person  who  is  to  deliver  the 
same  in  accordance  with  the  final  judgment,  and  not  when  it  is  in  the  possession  of 
a  third  person  who,  neither  personally  nor  representing  another,  was  adjudged  to 
return  the  same. — Decision  of  December  29,  1883. 

2  The  requisition  for  the  delivery  must  be  issued  by  the  court  and  not  in  a  notarial 
instrument.— Decision  of  October  22,  1888. 

3  When  the  final  judgment  did  not  fix  the  bases  for  the  payment  of  losses  and  dam- 
ages, the  adjudging  chamber  may  regulate  the  same. — Decision  of  December  17,  1885. 

The  question  of  indemnification  of  losses  and  damages  by  a  municipality  to  a  pri- 
vate individual  by  reason  of  an  order  to  tear  down  his  residence  is  to  be  decided  by 
the  ordinary  courts. — Royal  Decree  of  October  16,  1878,  and  Royal  Order  of  May  13, 
1875. 


LAW    OF    CIVIL    PROCEDURE.  183 

ART.  930.  When  the  debtor  impugns  said  statement  or  the  amount 
thereof,  the  procedure  prescribed  in  articles  936  et  seq.  shall  be 
observed. 

ART.  931.  Should  the  judgment  order  the  payment  of  an  uncertain 
sum,  arising  from  rents,  fruits,  profits,  or  products  of  any  kind,  whether 
the  basis  for  pa3^ment  has  been  determined  or  not,  the  debtor  shall  be 
required,  within  the  period  fixed  by  the  judge,  according  to  the  circum- 
stances, to  present  the  liquidation  in  a  proper  case,  according  to  the 
basis  established  in  the  said  judgment. 

ART.  932.  Should  the  debtor  not  present  the  liquidation  within  the 
period  fixed  therefor,  he  shall  be  granted  another  period,  not  to  exceed 
one-half  of  the  original  period,  with  the  admonition  that  if  he  does  not 
do  so  before  the  expiration  of  the  latter  period,  he  will  be  obliged  to 
accept  and  pay  that  presented  by  the  judgment  creditor,  except  in  so 
far  as  he  ma}T  prove  it  to  be  erroneous. 

ART.  933.  Should  the  second  period  pass  without  the  judgment 
debtor  having  presented  the  liquidation,  the  creditor  shall  be  notified 
thereof,  in  order  that  he  may  prepare  and  present  the  same,  the  record 
being  delivered  to  him  for  this  purpose,  should  he  request  it. 

In  such  case  the  issue  shall  be  heard  and  decided  according  to  the 
provisions  of  articles  928,  929,  and  930. 

ART.  934.  When  the  liquidation  mentioned  in  article  931  is  presented 
by  the  debtor,  it  shall  be  referred  to  the  creditor  for  the  period  of  six 
days,  counted  from  that  following  the  delivery  of  the  copy  of  the 
liquidation  and  instrument. 

ART.  935.  Should  the  creditor  agree  to  said  liquidation,  the  judge 
shall  approve  it  without  further  remedy,  and  the  payment  of  the 
amount  agreed  upon  shall  be  enforced  in  the  manner  prescribed  in 
articles  920  et  seq. 

ART.  936.  If  the  parties  should  not  agree,  evidence  upon  the  issue 
shall  be  taken,  should  the  judge  deem  it  necessary,  when  any  of  the 
parties  should  request  it. 

The  same  procedure  shall  be  observed  in  other  cases  of  disagree- 
ment referred  to  in  articles  930  and  933. 

A  ruling  denying  the  admission  of  evidence  may  be  appealed  from; 
but  such  appeal  shall  be  allowed  and  determined  at  the  same  time  as 
the  appeal  from  the  ruling  closing  the  liquidation,  if  such  appeal  be 
interposed. 

ART.  937.  The  period  for  the  taking  of  evidence  cannot  exceed  20 
days,  within  which  period  the  judge  shall  grant  the  number  of  days 
he  may  consider  necessary. 

This  period  shall  be  common  for  the  presentation  and  taking  of  evi- 
dence, observing  in  other  respects  the  provisions  for  ordinary  actions 
which  may  be  applicable. 

ART.  938.  The  evidence  shall  be  limited  to  the  facts  upon  which  the 
parties  do  not  agree. 


184  LAW    OF    CIVIL    PROCEDURE. 

The  judge  shall  disallow,  without  hearing  the  opposite  party,  and 
without  further  remedy  than  that  of  a  rehearing,  the  evidence  which 
is  not  pertinent  or  which  tends  to  contradict  the  basis  fixed  for  the 
liquidation  in  the  final  judgment. 

ART.  939.  After  the  period  for  the  taking  of  evidence  has  expired, 
or  all  that  submitted  has  been  taken,  the  clerk  shall  make  a  report 
thereon,  and  the  judge  shall  order  the  parties  to  appear  at  the  earliest 
practicable  date,  within  the  next  eight  days. 

The  same  shall  be  done  in  case  that  no  evidence  is  taken  on  the  issue 
as  soon  as  the  instrument  impugning  the  liquidation  is  presented. 

ART.  940.  The  parties  shall  appear  on  the  day  and  hour  fixed,  and 
the  clerk  shall  report  upon  the  claims  of  both  and  of  the  result  of  the 
evidence  that  may  have  been  taken;  immediately  thereafter  the  judge 
shall  hear  the  parties  or  their  counsel,  should  they  appear,  and  shall 
endeavor  to  have  them  come  to  an  agreement. 

The  proper  record  shall  be  made  of  the  result  of  the  hearing,  which 
shall  be  signed  by  all  the  parties  present,  and  authenticated  by  the 
clerk. 

ART.  941.  Within  the  three  following  days,  the  judge  shall  render, 
by  means  of  a  ruling,  the  decision  which  he  may  deem  proper,  fixing 
the  amount  to  be  paid  in  accordance  with  the  final  judgment. 

In  the  case  of  article  933,  the  judge  shall  approve  the  liquidation 
presented  by  the  creditor,  in  so  far  as  the  debtor  may  not  have  proven 
it  incorrect,  and  which  is  according  to  the  bases  designated  in  the  final 
judgment. 

Said  ruling  may  be  appealed  from  for  review  only.  When  the 
appeal  is  allowed,  a  certified  copy  of  the  ruling,  together  with  such 
statement  as  may  be  necessary  for  its  execution,  shall  remain  in  court, 
and  the  original  record  shall  be  transmitted  to  the  superior  court,  the 
parties  being  summoned  to  appear  before  the  same  within  a  period  of 
fifteen  days.1 

ART.  942.  At  the  instance  of  the  creditor,  the  execution  of  said 
ruling  may  be  ordered. 

When  the  property  has  been  sold,  there  shall  be  given  to  the  creditor 
the  amount  agreed  upon  by  the  debtor,  together  with  the  costs  which 
may  be  charged  against  him;  and  the  difference  between  said  amount 
and  that  fixed  in  the  ruling  shall  be  deposited  in  the  proper  public 
establishment  until  the  appeal  is  decided,  unless  the  creditor  should 
furnish  security  to  the  satisfaction  of  the  judge  to  answer  therefor,  in 
which  case  said  difference  shall  also  be  delivered  to  him. 

1  The  violation  of  this  article,  as  it  refers  to  procedure  only,  can  not  be  made  the 
basis  for  an  appeal  for  annulment  of  judgment. — Decision  of  May  29,  1884. 

Questions  which  are  brought  up  during  the  period  of  the  execution  of  the  judg- 
ment must  be  decided  in  the  form  of  rulings,  and  not  judgments. — Decision  of  June 
5,  1884. 


LAW    OF    CIVIL    PROCEDURE.  185 

ART.  943.  The  second  instance  shall  be  heard  and  determined  accord- 
ing to  the  proceedings  established  in  articles  886  et  seq.  for  appeals  in 
incidental  issues. 

There  shall  be  no  remedy  whatsoever  against  the  decision  of  the 
audiencia.1 

ART.  944.  As  soon  as  the  ruling  is  final  or  the  execution  thereof  is 
ordered  (the  net  amount  being  fixed  in  all  the  cases  aforementioned)  it 
shall  be  enforced  according  to  the  procedure  prescribed  in  articles  920 
et  seq. 

ART.  945.  The  provisions  contained  in  articles  931  to  934  shall  be 
applicable  in  case  the  judgment  orders  that  the  accounts  of  an  admin- 
istration be  rendered  and  that  the  balance  on  hand  be  delivered;  but  in 
place  of  the  period  of  six  days  fixed  in  article  934  it  shall  be  twenty, 
and  that  of  twenty  days  fixed  in  article  937  may  be  extended  to  forty 
days,  when  the  judge  considers  it  necessary,  in  view  of  the  importance 
and  complication  of  the  subject.2 

ART.  946.  When  the  judgment  orders  the  payment  of  a  fixed  amount 
of  products  in  kind,  if  the  debtor  should  not  deliver  the  same  in  the 
period  fixed,  the  money  value  of  such  products  shall  be  determined 
and  steps  shall  be  taken  for  the  recovery  of  the  respective  amount. 

The  money  value  of  such  product  shall  be  calculated  at  the  average 
market  price  therefor  at  the  place  where  the  delivery  thereof  is  to  be 
made,  or  in  its  absence,  at  the  nearest  market  on  the  day  fixed  in  the 
judgment;  and  if  no  day  is  fixed  therein  then  that  of  the  day  when 
the  judgment  is  executed. 

The  price  shall  be  proven  by  means  of  a  certificate  of  the  syndics 
of  the  association  of  brokers  (colegio  de  corredores)  if  there  be  one,  and 
otherwise,  b}^  that  of  the  proper  municipal  authority. 

ART.  947.  No  appeal  lies  from  the  ruling  of  the  court  ordering  that 
the  money  value  of  products  be  determined  for  the  purposes  of  the 
execution,  but  any  material  error  or  errors,  in  the  calculation  must  be 
corrected  as  soon  as  discovered. 

ART.  948.  All  proper  appeals  taken  in  proceedings  for  the  execution 
of  judgments  shall  be  admitted  for  review  only. 

Incidental  issues  which  may  be  raised  relating  to  questions  not  con- 
troverted in  the  action  nor  decided  in  the  final  judgment,  are  not 
included  in  this  provision.3 

:When  the  judgment  rendered  for  the  fulfillment  of  another  judgment  conforms  to 
the  provisions  of  the  latter,  it  cannot  be  said  that  if  is  violated  or  in  contravention 
thereof. — Decision  of  June  6,  1884. 

2 The  admission  of  an  appeal  for  annulment  of  judgment  taken  against  a  decision 
of  an  audiencia  ordering  the  rendition  of  the  accounts  of  an  administration  and  the 
payment  of  the  balance  on  hand  is  not  proper. — Decision  of  April  20,  1888. 

3  When  a  question  is  raised  with  regard  to  the  interpretation  and  effects  of  a  judg- 
ment at  the  time  of  its  execution,  the  decision  rendered,  which  becomes  final,  is  an 
integral  part  thereof. — Decision  of  February  5,  1886. 


186  LAW    OF    CIVIL    PROCEDURE. 

ART.  949.  The  costs  incurred  in  proceedings  for  the  execution  of 
final  judgments  shall  be  taxed  against  the  judgment  debtor. 

Those  incurred  in  incidental  issues  raised  during  the  execution  shall 
be  taxed  against  such  party  or  parties  as  raise  the  said  issues,  on  which 
point  judges  and  courts  must  make  an  express  declaration  in  deciding 
the  incidental  issue.  Should  they  not  do  so,  each  party  shall  pay  those 
incurred  at  his  instance. 

SECTION  II. — Judgments  rendered  by  foreign  courts. 

ART.  950.  Final  judgments  rendered  in  foreign  countries  shall  have, 
in  the  territory  of  the  islands  of  Cuba  and  Porto  Rico,  the  force  estab- 
lished in  the  respective  treaties  made  by  Spain. 

ART.  951.  Should  there  be  no  special  treaties  with  the  nation  in 
which  the  judgment  has  been  rendered,  it  shall  have  the  same  force 
which  is  given  in  said  nation  to  final  judgments  rendered  in  Spain. 

ART.  952.  Should  the  final  judgment  have  been  rendered  in  a  nation 
where,  under  its  laws,  judgment  rendered  by  Spanish  courts  are  not 
executed,  it  shall  have  no  force  in  the  islands  of  Cuba  and  Porto  Rico. 

ART.  953.  If  the  judgment  should  not  be  included  in  an}r  of  the 
cases  mentioned  in  the  three  foregoing  articles,  the  final  judgments 
shall  have  force  in  said  territory,  if  the  following  circumstances  are 
attendant: 

1.  That  the  final  judgment  wTas  rendered  in  consequence  of  the  pros- 
ecution of  a  personal  cause  of  action. 

2.  That  it  is  not  a  judgment  rendered  b}^  default. 

3.  That  the  obligation  to  enforce  which  the  action  was  instituted  is 
licit  according  to  the  laws  of  Spain. 

4.  That  the  writ  of  execution  possess  the  requisites  necessary  in  the 
nation  in  which  it  was  rendered  in  order  to  be  considered  authentic, 
and  the  requisites  which  the  Spanish  laws  require  in  order  to  be 
admissible  in  Spain. 

ART.  954.  The  execution  of  judgments  rendered  in  foreign  countries 
must  be  requested  of  the  Supreme  Court. 

Cases  are  excepted  in  which,  according  to  treaties,  their  cognizance 
pertains  to  other  courts. 

ART.  955.  After  the  translation  of  the  judgment,  made  according  to 
law,  and  after  the  party  against  whom  the  judgment  is  rendered  and 
the  public  prosecutor  have  been  heard  within  a  period  of  nine  days, 
the  court  shall  declare  whether  or  not  said  judgment  is  to  be  executed. 

Against  this  ruling  there  shall  be  no  further  remedy. 

ART.  956.  For  the  citation  of  the  party,  who  must  be  heard  accord- 
ing to  the  foregoing  article,  a  certificate  shall  be  issued  and  forwarded 
to  the  audiencia  within  whose  jurisdiction  he  may  be  residing. 

The  period  within  which  to  appear  shall  be  thirty  days,  if  the  party 
is  a  resident  of  the  Peninsula,  adjacent  islands,  or  the  Canaries. 


-I  0*7 

LAW    OF   CIVIL   PROCEDURE. 


Sixty  days  if  he  reside*  in  the  islands  of  Cuba  or  Porto  Rico. 

Ninety  days  should  he  reside  in  the  Phihppme  Islands. 

At  the  expiation  of  said  period  the  court  shall  continue  w,th  the 
nroceedino-s   even  if  the  party  cited  fails  to  appear. 
P  IKT  95°7  'Should  the  exertion  be  denied,  the  judgment  shall  be 
returned  to  the  person  who  may  have  presented  it. 

If  he  execution  is  ordered,  a  certified  copy  of  the  ruling  shall 
transmitted  to  the  audiencia,  in  order  that  the  same  may  give  the 
pxopeTorder  to  the  judge  of  first  instance  of  the  judicial  district  in 
S  the  person  against  whom  the  judgment  was  rendered  is  domi- 
iudicial  district  in  which  said  udgment  is  to  be  exe- 
SiroiSt  provisions  may  be  fulfilled,  employing  the 
means  for  execution  prescribed  in  the  foregoing  sect 


TITLE  IX. 

INTESTATE  PBOCEEDIHGS. 

SECTION  I.—  Provisional  measures. 


ART    958    Intestate  proceedings  shall  be  commenced  by  placing  in 

secure  place,  under  lock  and  seal,  the  property   papers,  books, 

and  gooX  i  ble  to  be  stolen  or  hidden;  depositing  with  some  pei,on 

offering  sufficient  security  under  the  liability  of  the  ]udge,  and  after 

inventory  has  been  made  thereof,  such  property  as  may  require  care 

*  be  able  to  institute  intestate  proceedings,  it  is 


there  is  information  of  the  recent  death  of  the  principal 
2    Tha     he  existence  of  a  testamentary  disposjtion  is  not  known. 

Tha    the  deceased  left  no  surviving  descendants,  ascendants,  or 
eoLlraf  relattr^ithin  the  fourth  degree,  nor  legitimate  spouse 


article,  or  any 
without  having  a  legal  representative  in  the  town, 

i  See  subdivision  4  of  article  270  of  the  Organic  Law. 


ember  10,  1884- 


188  LAW    OF    CIVIL    PROCEDURE. 

the  judge  shall  limit  himself  to  adopting  the  measures  indispensable  for 
the  burial  of  the  deceased,  if  necessary,  and  for  the  security  of  the 
property,  and  to  giving  proper  notice  of  the  death  of  said  deceased 
to  said  relatives  who  may  be  considered  the  heirs  of  said  decedent. 

As  soon  as  the  relatives  appear,  personally  or  through  legal  repre- 
sentatives, the  property  and  goods  belonging  to  the  deceased  shall  be 
given  to  them,  after  which  the  judicial  intervention  shall  cease,  unless 
some  of  the  interested  parties  request  otherwise. 

ART.  961.  The  judge  shall  also  ex  qfficio  take  such  measures  as  he 
may  deem  necessary  for  the  security  of  the  property,  even  if  the  deceased 
left  any  of  the  relatives  above  mentioned,  when  any  of  them  are 
minors  or  incapacitated. 

Tutors  or  curators1  shall  be  appointed  by  the  judge  of  first  instance 
for  such  persons,  if  they  should  have  none.2 

ART.  962.  The  owner  of  the  house  wherein  the  death  occurred,  or 
any  other  person  with  whom  the  person  who  died  intestate  and  without 
any  of  the  relatives  above  mentioned,  may  have  lived,  must  give  notice 
of  the  death  to  the  judicial  authorities,  being  liable  for  all  losses  or 
misplacements  which  may  occur  of  the  property  of  the  intestate  by 
reason  of  his  failure  to  give  said  notice. 

ART.  963.  Any  of  the  judges  mentioned  in  rule  5  of  article  63, 
having  knowledge  of  the  death  of  a  person  dying  intestate  and  with- 
out leaving  any  of  the  relatives  mentioned  in  subdivision  3  of  article 
959,  in  addition  to  taking  the  measures  prescribed  in  article  960,  shall 
proceed  ex  officio  to  take  the  preliminary  intestate  proceedings  pre- 
scribed in  article  958. 

ART.  964.  After  the  measures  mentioned  in  the  foregoing  articles 
have  been  taken,  the  judge  of  first  instance,  or  the  municipal  judge, 
in  a  proper  case,  shall  take  the  steps  he  may  consider  best,  in  order  to 
ascertain  if  the  person  whose  succession  is  in  question  died  with  or 
without  making  a  testamentary  provision,  receiving,  in  the  absence  of 
other  means,  and  without  prejudice  to  attaching  to  the  record  the 
death  certificate  as  soon  as  possible,  the  testimony  of  relatives,  friends, 
and  neighbors  of  the  deceased: 

1.  As  to  whether  the  deceased  died  intestate. 

2.  As  to  whether  or  not  he  has  heirs  of  any  of  the  classes  mentioned. 

1  Tutor:  The  person  in  charge,  primarily,  of  the  education,  rearing,  and  defense, 
and,  secondarily,  of  the  administration  and  government  of  the  property  of  a  person 
whose  father  died  before  he  had  attained  fourteen  years  of  age,  if  a  male,  or  twelve 
years,  if  a  female. 

Curator:  The  person  appointed  to  take  care  of  the  property  and  business  of  a  per- 
son who,  on  account  of  his  minority,  insanity,  imbecility,  absence,  interdiction,  or 
declared  prodigality,  is  not  in  a  condition  to  personally  administer  or  manage  the 
same. — Escriche,  Diccionario  de  Legislation  y  Jurisprudentia, 

2  See  article  293  of  the  Civil  Code. 


LAW    OF    CIVIL    PROCEDURE.  189 

ART.  965.  If  it  appears  that  the  person  died  intestate  without  any 
of  the  relatives  mentioned  in  subdivision  3  of  article  959  the  judge 
shall: 

1.  Appoint  a  special  administrator,  who  shall  take  charge  of  the 
burial  of  and  obsequies  over  the  deceased,  and  all  other  matters  coming 
within  his  jurisdiction,  according  to  law. 

2.  To  take  charge  of  the  books,  papers,  and  correspondence  of  the 
deceased. 

3.  To  make  an  inventory  of  the  property  and  deposit  the  same  with 
some  person  furnishing  sufficient  security,  who  shall  also  take  charge 
of  the  administration  thereof. 

ART.  966.  The  depositary-administrator  of  the  property  shall  fur- 
nish security  in  proportion  to  the  property  he  is  to  administer,  to  the 
satisfaction  and  under  the  liability  of  the  judge  who  has  instituted  the 
preliminary  proceedings,  and  he  may  be  removed  at  the  will  of  said 
judge. 

ART.  967.  If  money,  public  securities,  or  jewelry  are  found,  the 
same  shall  be  deposited  in  the  public  establishment  destined  to  this 
purpose,  and  the  clerk  shall  enter  in  the  record  a  true  copy  of  the 
instrument  showing  where  they  are  deposited,  and  preserve  the  original 
in  his  possession  for  delivery  to  the  depositary-administrator  when  he 
takes  charge  of  the  property. 

Should  there  be  no  such  public  establishment  at  the  place  where  the 
proceedings  are  pending,  the  judge  shall  provide  for  the  safety  of  said 
property  temporarily,  under  his  liability,  in  the  manner  he  deems 
best,  without  prejudice  to  ordering  the  transfer  of  said  property  to 
said  establishment  as  soon  as  possible. 

ART.  968.  The  judge  shall  open  the  correspondence  in  the  presence 
of  the  administrator  appointed  and  the  clerk,  and  shall  adopt  such  meas- 
ures as  may  appear  therefrom  to  be  necessary  for  the  security  of  the 
property. 

The  correspondence  relating  to  the  estate  shall  be  delivered  to  the 
administrator,  and  a  copy  or  memorandum  thereof,  as  may  be  deemed 
proper,  in  view  of  its  importance,  shall  be  attached  to  the  record,  and 
the  other  correspondence  shall  remain  in  the  possession  of  the  clerk  for 
proper  disposition  in  due  time. 

ART.  969.  After  the  municipal  judge  has  taken  these  measures,  he 
shall  forward  the  proceedings  to  the  judge  of  first  instance,  and  place 
at  his  disposal  all  the  property,  books,  and  papers  in  question  and  the 
correspondence  received. 

ART.  970.  The  judge  of  first  instance,  upon  receipt  of  the  proceed- 
ings, shall  correct  any  errors  that  may  have  been  committed  therein, 
issuing  the  proper  orders  for  the  purpose. 

ART.  971.  As  soon  as  the  proceedings  have  reached  this  stage,  the 
deputy  public  prosecutor  (Promoter  fiscal)  shall  take  part  in  said  pro- 


190  LAW    OF    CIVIL    PROCEDURE. 

ceedings  on  behalf  of  the  parties  who  might  have  an  interest  in  the 
estate. 

It  shall  be  his  duty  to  take  such  measures  as  he  may  consider  neces- 
sary for  the  security  and  good  administration  of  the  property. 

ART.  972.  Intestate  proceedings  may  also  be  instituted  in  all  cases 
at  the  instance  of  a  legitimate  party.  Such  parties  shall  be,  for  this 
purpose: 

1.  The  nearest  relatives  of  the  deceased  who  believe  themselves 
entitled  to  the  estate. 

2.  The  surviving  spouse. 

3.  The  creditors  who  present  written  and  conclusive  evidence  of 
their  claim,  and  who  are  not  secured  by  mortgage  or  other  guaranty. 

ART.  973.  In  the  case  of  the  foregoing  article,  the  person  who 
requests  that  intestate  proceedings  be  instituted  must  prove  that  he 
is  a  legitimate  party  according  to  said  article,  and  that  the  principal 
died  intestate,  or  that  there  is  no  evidence  of  any  testamentary  pro- 
vision, stating  also  who  are  the  nearest  relatives  and  their  domiciles,  if 
known  to  him. 

Such  proof  shall  be  given  by  means  of  the  proper  documents,  if  it 
be  possible  to  secure  them,  and  by  the  evidence  of  witnesses.1 

ART.  974.  When  the  petition  has  been  presented,  the  judge  shall 
order  that  the  person  interested  ratify  the  same,  and  furnish  the 
information,  with  a  citation  of  the  deputy  public  prosecutor. 

If  from  the  petition  and  the  documents  presented  it  should  appear 
that  the  deceased  died  intestate,  and  that  the  petitioner  is  a  legitimate 
party,  the  judge  shall  order  that  intestate  proceedings  be  instituted, 
and  that  the  measures  prescribed  in  articles  963  and  965  be  taken. 

These  measures  shall  be  confined  to  the  prescriptions  of  numbers  2 
and  3  of  article  965,  when  the  institution  of  proceedings  has  been 
requested  more  than  thirty  days  after  the  death  of  the  intestate,  or 
from  the  time  when  notice  of  his  death  was  received. 

ART.  975.  In  such  cases,  should  there  be  a  surviving  spouse,  who 
was  cohabiting  with  the  deceased  at  the  time  of  death,  the  same  shall 
be  appointed  depositary-administrator,  and  as  soon  as  an  inventory 
of  the  property  has  been  made,  it  shall  be  delivered  to  said  depositary- 
administrator  as  such,  removing  the  seals  and  locks  as  the  delivery  is 
made. 

No  bond  shall  be  required  when,  in  the  judgment  of  the  judge,  the 
said  depositary -administrator  has  sufficient  property  of  his  or  her  own 
to  guarantee  that  which  does  not  belong  to  him  or  her.  Otherwise  he 
or  she  must  furnish  security  in  such  sum  as  the  judge  may  fix. 

If  there  be  no  surviving  spouse  with  legal  capacity  to  administer 
the  property,  this  office  shall  be  given  to  another  person,  and  the  pro- 
visions of  articles  966  and  967  shall  be  observed. 

^ee  article  11  of  the  Koyal  Decree  of  February  19,  1891,  relating  to  the  registra- 
tion of  last  wills. 


LAW    OF    CIVIL    PROCEDURE.  191 

SECTION  II. — Designation  of  heirs  ab  intestato. 

ART.  976.  After  the  measures  indispensable  for  the  security  of  the 
property  prescribed  in  the  foregoing  section  have  been  taken,  and 
without  prejudice  to  including  in  the  same  proceedings  the  making 
of  the  inventory,  the  designation  of  heirs  ab  intestato  shall  be  pro- 
ceeded with  in  a  separate  record. 

ART.  977.  This  designation  may  also  be  made  at  the  instance  of  the 
interested  parties,  without  the  necessity  of  previously  taking  the  steps 
mentioned,  in  cases  in  which  they  are  not  necessary  and  in  which  the 
institution  of  intestate  proceedings  is  not  requested. 

ART.  978.  Heirs  ab  intestato  who  are  descendants  of  the  deceased, 
may  obtain  a  declaration  of  their  rights  b}^  proving  with  the  proper 
documents  or  with  the  evidence  obtainable,  the  death  of  the  person 
whose  estate  is  in  question,  their  relationship  to  the  same,1  and  with 
the  evidence  of  witnesses  that  said  person  died  intestate,  and  that  they, 
or  the  persons  whom  they  designate,  are  his  only  heirs. 

The  services  of  a  solicitor  or  attorney  are  not  necessary  in  order  to 
present  this  claim. 

ART.  979.  The  deputy  public  prosecutor  shall  be  cited  to  appear  at 
said  proceeding,  to  whom  the  record  shall  afterwards  be  referred  for 
the  period  of  six  days  for  his  report  thereon. 

Should  he  find  the  proof  insufficient,  a  hearing  shall  be  granted  to 
the  interested  parties  in  order  that  they  may  cure  the  defect. 

When  the  deputy  public  prosecutor  requests  it,  or  the  judge  con- 
siders it  necessary,  the  documents  presented  shall  be  compared  with 
the  originals. 

ART.  980.  When  the  foregoing  steps  have  been  taken,  the  judge 
shall,  without  further  proceedings,  make  a  ruling  designating  the  heirs 
ab  intestato  should  he  deem  it  proper,  or  he  may  refuse  to  make  such 
declaration,  reserving  the  rights  of  the  claimants  to  institute  an  ordi- 
nary action. 

This  ruling  may  be  appealed  from  both  for  review  and  a  stay  of 
proceedings. 

ART.  981.  The  procedure  prescribed  in  the  three  foregoing  articles 
shall  also  be  employed  in  the  designation  of  heirs  ab  intestato  when 
any  of  the  ascendants  of  the*  deceased  request  it. 

In  such  case,  if  from  the  certificate  of  birth  of  said  deceased  it  should 
appear  that  he  died  before  reaching  the  legal  age  for  making  a  will, 
the  testimony  of  witnesses  prescribed  in  article  978  shall  not  be 
necessary. 

ART.  982.  The  same  procedure  shall  also  be  employed  in  making  a 
designation  of  heirs  ab  intestato  when  requested  by  collateral  relatives 
within  the  fourth  degree. 

1  See  art.  327  of  the  Civil  Code. 


192  LAW    OF    CIVIL    PROCEDURE. 

ART.  983.  In  the  case  of  the  foregoing  article,  if,  in  the  opinion  of 
the  deputy  public  prosecutor  or  of  the  judge,  there  are  reasonable 
grounds  to  believe  that  there  may  be  other  relatives  of  the  same  or 
nearer  degree,  and  provided  that  the  value  of  the  real  property  or 
property  rights  belonging  to  the  estate  exceeds  5,000  pesetas,  the 
judge  shall  order  that  public  notices  be  posted  at  the  public  places 
of  the  locality  where  the  proceedings  are  pending,  and  in  the  towns 
where  the  deceased  was  born  and  died,  announcing  his  death  and 
intestacy,  the  names  and  degree  of  relationship  of  those  who  claim 
the  inheritance,  and  calling  upon  all  persons  who  believe  themselves 
vested  with  an  equal  or  better  right  thereto,  to  appear  in  court  and 
assert  their  claim  within  thirty  days. 

The  judge  may  extend  this  period  for  the  time  he  may  consider 
necessary,  when  by  reason  of  the  birthplace  of  the  deceased  or  for 
other  circumstances  it  is  presumed  that  he  may  have  relatives  beyond 
the  territory  of  the  islands  of  Cuba  and  Porto  Rico. 

The  notices  shall  be  inserted  in  the  official  papers  of  the  three  towns 
above  mentioned,  should  there  be  any. 

They  shall  also  be  inserted  in  the  Gaceta  of  the  general  government 
and  in  that  of  Madrid,  if,  in  the  opinion  of  the  judge,  the  circum- 
stances of  the  case  require  it. 

ART.  984.  If  after  the  period  mentioned  in  the  notices,  counting  from 
the  date  of  their  publication  in  the  last  of  the  towns  or  periodicals  in 
which  it  was  inserted,  has  expired,  no  one  should  appear,  the  judge 
shall  order  the  record  brought  before  him,  and  he  shall  render  the 
decision  prescribed  in  article  980. 

Should  other  relatives  have  appeared  the  provisions  of  articles  986 
et  seq.  shall  be  observed. 

ART.  985.  If  there  be  no  descendants,  ascendants,  nor  collateral 
relatives  within  the  fourth  degree,  whether  or  not  any  relative  has 
appeared  to  claim  the  estate,  the  judge  shall,  after  the  provisional 
measures,  order  that  notices  be  posted  and  published  in  the  places  and 
for  the  time  mentioned  in  article  983,  announcing  the  death  and  intes- 
tacy of  the  person  whose  succession  is  in  question,  and  calling  upon  all 
persons  to  appear  who  believe  themselves  entitled  to  the  estate. 

ART.  986.  As  soon  as  the  periods  fixed  for  said  notices  have  passed, 
others  shall  be  posted  and  published  in  the  same  manner  and  for  the 
same  period,  making  a  second  citation  for  a  period  of  twenty  days 
with  the  proper  admonitions. 

In  these  second  notices  there  shall  be  stated,  in  a  proper  case,  the 
names  of  the  relatives  who  may  have  appeared  and  their  degree  of 
relationship  to  the  deceased. 

ART.  987.  The  parties  who  appear  in  consequence  of  said  calls  shall 
state  in  writing  their  degree  of  relationship  to  the  intestate,  and  shall 
prove  the  same  with  the  proper  documents,  accompanied  by  a  draft  of 
their  genealogical  tree. 


LAW    OF    CIVIL    PROCEDURE.  193 

These  statements  and  documents  shall  be  attached  to  the  proceedings 
for  the  designation  of  heirs  in  the  order  in  which  they  are  presented. 

ART.  988.  When  there  is  but  one  claimant  to  the  estate,  and  also 
if,  there  being  several,  they,  all  of  them,  allege  the  same  rights  based 
on  the  same  title,  the  record  shall  be  delivered  to  the  deputy  public 
prosecutor  for  his  report  thereon. 

Should  the  latter  decide  that  they  be  declared  heirs,  the  judge  shall 
order  the  record  brought  before  him,  and,  without  further  proceed- 
ings, shall  make  the  designation,  should  he  deem  it  proper. 

This  ruling  may  be  appealed  from  both  for  review  and  for  a  stay  of 
proceedings. 

ART.  989.  Should  the  deputy  public  prosecutor  report  unfavorably, 
his  report  and  the  record  shall  be  referred  for  a  period  of  six  days  to 
the  persons  interested,  and  the  question  shall  be  heard  and  determined 
according  to  the  procedure  prescribed  for  incidental  issues. 

ART.  990.  If  there  be  two  or  more  claimants  to  the  estate  and  they 
do  not  agree  as  to  their  claims,  as  soon  as  the  period  mentioned  in  the 
second  notices  has  expired  the  record  shall  be  delivered  to  the  said 
claimants  for  a  period  of  six  days  each,  in  order  that  they  may  allege 
and  request  what  they  may  consider  proper  as  to  the  rights  of  each 
claimant. 

Those  who  make  common  cause  should  embody  their  claims  in  the 
same  instrument  and  be  represented  by  the  same  counsel. 

The  record  shall  be  delivered  to  the  parties  in  the  order  in  which 
they  have  entered  appearance. 

ART.  991.  After  all  the  persons  in  interest  have  complied  with  the 
provisions  of  the  foreging  article,  the  deputy  public  prosecutor  shall 
be  heard  as  to  the  rights  of  each  claimant  and  recommend  what  he  may 
consider  proper. 

ART.  992.  When  any  of  the  parties  shall  request  the  taking  of  evi- 
dence, the  provisions  prescribed  for  incidental  issues  in  articles  751, 
752,  and  753  shall  be  observed. 

Evidence  mav  also  be  taken. 

1.  When  some  document  having  been  expressly  impugned,  it  becomes 
necessary  to  compare  it  with  its  original. 

2.  Whenever  it  is  necessary  for  any  of  the  parties  in  interest  to  com- 
plete the  proof  of  his  rights. 

ART.  993.  After  the  evidence  taken  has  been  attached  to  the  record 
upon  the  expiration  of  the  period  for  the  taking  thereof,  and  if  no 
evidence  has  been  submitted,  as  soon  as  the  deputy  public  prosecutor 
gives  his  opinion,  the  judge  shall  call  a  meeting  of  the  parties  inter- 
ested, within  the  eight  days  following,  fixing  the  day  and  hour  it  is  to 
be  held. 

At  this  meeting,  which  must  be  attended  by  the  deputy  public  prose- 
cutor, and  also,  if  they  desire,  by  the  attorneys  of  the  parties,  the  said 
5190 13 


194  LAW    OF    CIVIL    PROCEDURE. 

parties  shall  discuss  their  claims  to  the  estate.  If  they  agree  upon  their 
right  to  and  as  to  their  respective  share  in  the  estate,  this  fact  shall 
be  entered  in  the  minutes  of  the  meeting,  together  with  a  statement 
as  to  whether  or  not  the  deputy  public  prosecutor  is  satisfied  with  said 
agreement. 

When  such  agreement  is  not  arrived  at,  a  statement  of  this  fact  shall 
also  be  entered  in  the  minutes,  which  shall  be  signed  by  all  the  parties 
present,  together  with  the  judge  and  the  clerk. 

ART.  994.  Whatever  be  the  result  of  the  meeting,  the  judge  shall 
immediately  thereafter  order  the  record  brought  before  him,  citing  the 
parties  for  judgment,  which  he  shall  render  without  further  proceed- 
ings, within  the  six  days  following,  deciding  therein  what  he  may  con- 
sider just  as  to  the  rights  of  the  claimants  and  their  respective  partici- 
pation in  the  estate. 

With  regard  to  the  division  of  the  estate,  the  judge  shall  confine 
himself  to  the  agreement  made  by  the  parties  in  interest,  should  they 
be  competent  to  enter  upon  a  contract. 

This  judgment  may  be  appealed  from,  both  for  review  and  for  a 
stay  of  proceedings. 

ART.  995.  As  soon  as  the  judicial  decision   designating  the  heirs 
becomes  final,  the  public  prosecutor  shall  cease  to  take  part  in  the  pro 
ceedings,  and  all  questions  pending,  or  which  may  be  raised  thereafter, 
shall  be  heard  and  determined  with  the  heir  or  heirs,  who  have  been 
instituted  such  by  said  decision. 

ART.  996.  Parties  claiming  any  right  to  the  estate  who  may  not 
have  appeared  in  the  proceedings  during  the  period  mentioned  in  the 
notices,  may  do  so  before  the  calling  of  the  meeting,  accompanying 
the  documents  which  establish  their  claim,  but  in  no  case  shall  there 
be  any  retrogression  in  the  proceedings. 

They  shall  not  be  admitted  after  the  call  for  the  meeting  has  been 
issued,  but  they  may  protect  their  rights  through  the  ordinary  chan- 
nels against  those  who  have  been  instituted  heirs. 

ART.  997.  Should  no  claimant  to  the  estate  appear,  or  if  none  of  those 
who  did  appear  should  have  been  recognized  as  being  entitled  thereto, 
a  third  call  by  edicts  shall  be  made  for  a  period  of  two  months  in  the 
manner  prescribed  for  the  prior  notices,  and  with  the  admonition  that 
the  succession  will  be  declared  vacant  if  no  claimant  therefor  appears. 

ART.  998.  If  the  period  mentioned  in  the  third  citation  should  expire 
without  any  person  having  appeared,  or  if  the  claimants  who  may  have 
appeared  should  be  declared  as  having  no  right  to  inherit,  the  succes- 
sion shall  be  declared  vacant,  and,  at  the  instance  of  the  public  prose- 
cutor, the  estate  shall  be  disposed  of  in  the  manner  prescribed  by  law. 1 

ART.  999.  In  the  case  of  the  foregoing  article  the  property,  together 

1  See  articles  955  to  958  of  the  Civil  Code  with  regard  to  the  succession  of  the  State 
in  the  absence  of  persons  having  a  right  to  succeed. 


LAW    OF    CIVIL    PROCEDURE.  195 

with  the  books  and  papers  appertaining  thereto,  shall  be  turned  over 
to  the  State. 

With  regard  to  the  other  papers,  the  judge,  after  consultation  with 
the  deputy  public  prosecutor,  shall  order  that  those  which  may  be  of 
some  interest  be  preserved  and  the  balance  destroyed.  Those  to  be 
preserved  shall  be  tiled  with  the  record  of  the  intestate  proceedings 
under  closed  and  sealed  cover,  on  the  outside  of  which  a  memorandum 
of  its  contents  shall  be  made  which  shall  be  rubricated  by  the  judge 
and  deputy  public  prosecutor  and  signed  by  the  clerk. 

SECTION  III.  — Intestate  proceedings. 

ART.  1000.  After  the  declaration  of  heirs  ab  intestato  has  been  made, 
by  a  final  judgment  or  ruling,  the  proceedings  shall  be  continued  accord- 
ing to  the  procedure  prescribed  for  testamentary  proceedings.1 

ART.  1001.  The  judge  shall  order  that  there  be  delivered  to  the  heirs 
instituted  all  the  property,  books,  and  papers  of  the  intestate,  and  that 
the  administrator  render  an  account  of  his  administration  to  them,  the 
judicial  intervention  ceasing. 

This  intervention  may  continue  only  in  the  following  cases: 

1.  When  it  is  requested  by  any  of  the  heirs  designated  or  by  the 
surviving  spouse. 

2.  When  legally  necessary  by  reason  of  the  attendance  of  circum- 
stances which,  according  to  article  1040,  require  testamentary  proceed- 
ings. 

ART.  1002.  For  the  purposes  of  the  case  mentioned  in  number  4  of 
article  161,  the  following  are  declared  to  be  subject  to  consolidation 
with  these  and  with  testamentary  proceedings:2 

1.  The  executory  actions  instituted  against  the  deceased  before  his 
death,  with  the  exception  prescribed  in  article  166. 

2.  Ordinary  personal  actions,  pending  in  first  instance  against  the 
deceased. 

3.  Real  actions  pending  against  the  same  in  first  instance  when  not 
pending  before  the  court  of  the  place  in  which  the  real  property  is 
situated  or  where  the  personal  property  subject  of  the  action  is  located. 

4.  All  ordinary  and  executory  actions  instituted  against  the  heirs  of 
the  deceased  or  against  his  estate  after  the  provisional  measures  in  the 
intestate  proceedings  have  been  taken,   with  the  exception  of  article 
166,  above  referred  to. 

1  After  the  declaration  of  heirs  ab  intestato  has  been  made,  the  proceedings  must 
conform  to  the  procedure  established  for  testamentary  proceedings,  and  a  judg- 
ment which  denies  a  petition  to  this  effect,  under  the  erroneous  impression  that  the 
institution  of  testamentary  proceedings  is  requested,  violates  the  law  of  civil  pro- 
cedure and  law  16,  Title  XXII,  partida  3,  relating  to  the  congruence  of  the  com- 
plaint and  the  decision. — Decision  of  December  6,  1881. 

2  See  note  to  Art.  164. 


196  LAW    OF    CIVIL    PROCEDURE. 

ART.  1003.  After  the  institution  of  the  intestate  proceedings  has 
been  decreed,  the  consolidation  of  the  actions  mentioned  in  the  fore- 
going- article  with  said  intestate  proceedings  may  be  requested: 

1.  By  the  deputy   public  prosecutor,  while  he  is  a  party  to  the 
proceedings. 

2.  By  the  administrator  of  the  property,  while  he  is  acting  as  the 
representative  of  the  intestate.1 

3.  By  the  heirs  or  any  one  of  them  as  soon  as  they  have  been 
acknowledged  and  declared  as  such  by  final  judgment. 

4.  By  any  other  legitimate  party  to  the  intestate  proceedings. 

In  order  to  cany  into  effect  such  consolidations  the  provisions  of 
articles  1184  and  1185  shall  be  observed.2 

SECTION  IV.  —  Administration  of  intestate  successions. 

ART.  1004.  A  separate  record  shall  be  made  of  all  intestate  proceed- 
ings, which  shall  be  called  the  administration  record,  in  which  shall 
be  entered  all  matters  relating  thereto. 

There  shall  also  be  made,  in  a  proper  case,  as  many  separate  branches 
of  said  record  as  may  be  necessary  in  order  to  avoid  confusion.3 

ART.  1005.  The  administration  record,  together  with  the  record  of 
accounts  and  other  incidental  matters,  shall  be  kept.  in  the  clerk's 
office  for  examination  during  office  hours  by  those  who  may  have 
appeared  and  alleged  some  right  to  the  succession,  providing  request 
therefor  is  made  to  the  clerk,  who  can  charge  no  fee  for  this  examina- 
tion. 

If,  in  view  thereof,  they  should  make  any  claim  the  judge  shall  hear 
the  same,  if  it  is  well  founded. 

ART.  1006.  After  the  administrator  has  been  appointed,  and  has 
furnished  the  security  prescribed  in  section  1  of  this  title,  he  shall  be 
placed  in  possession  of  his  office,  being  proclaimed  administrator  to 
the  persons  he  may  designate  from  among  those  with  whom  he  is  to 
deal  in  the  discharge  of  his  duties. 

In  order  that  he  may  accredit  his  administration,  he  shall  be  given  a 
certificate  vised  by  the  judge,  showing  his  appointment  and  that  he  is 
in  possession  of  the  office. 


arts.  1026  of  the  Civil  Code  and  1007  of  this  law. 

2  The  violation  of  this  article  can  not  serve  as  a  basis  for  an  appeal  for  annulment  of 
judgment.  —  Decision  of  January  3,  1872. 

By  the  former  as  well  as  by  the  present  law  of  procedure,  the  department  of 
public  prosecution  is  a  party  to  intestate  proceedings  on  behalf  of  those  who  may  be 
entitled  to  the  succession.  —  Decision  of  July  1,  1886. 

'Until  a  declaration  of  heirs  ab  intestato  is  made  by  a  final  ruling  or  judgment,  the 
administrator  of  the  intestate  succession  shall  represent  the  same  in  all  actions  which 
may  be  instituted  or  have  already  been  commenced,  and  the  department  of  public 
prosecution  or  other  interested  parties  shall  not  have  a  right  to  do  so.  —  Decision  of 
July  1,  1885. 


LAW    OF    CIVIL    PROCEDURE.  197 

ART.  1007.  The  administrator  shall  represent  the  intestate  in  all 
actions  that  may  be  instituted  or  that  may  have  been  instituted  when 
intestate  proceedings  were  commenced,  as  well  as  in  all  issues  which 
relate  to  the  property  of  the  estate,  except  that  which  relates  to  the 
declaration  of  heirship,  in  which  he  shall  have  no  intervention. 

As  said  representative,  he  shall  also  institute  actions  which  the 
deceased  might  have  instituted,  even  if  such  proceedings  are  to  be 
instituted  in  another  superior  or  inferior  court,  or  through  adminis- 
trative channels;  he  shall  further  act  as  such  representative  in  all  other 
acts  in  which  the  intervention  of  the  intestate  might  be  necessary,  until 
the  declaration  of  heirship  is  made  by  final  judgment.1 

ART.  1008.  As  soon  as  the  value  of  the  estate  is  known,  the  judge 
shall  order  that  the  bond  of  the  administrator  which  was  given  during 
the  preliminary  proceedings  be  increased  to  such  amount  as  the  judge 
shall  determine,  should  he  consider  the  first  insufficient. 

Should  the  administrator  not  furnish  the  additional  bond  within  the 
period  fixed  by  the  judge,  he  shall  be  substituted  by  another  adminis- 
trator, who  shall  furnish  the  proper  bond. 

ART.  1009.  The  administrator  shall  render  an  account,  properly 
vouched,  at  such  times  as  the  judge  may  designate,  such  periods  being 
governed  by  the  importance  and  conditions  of  the  estate,  but  in  no 
case  can  the  intervals  exceed  one  year. 

On  presenting  his  account,  the  administrator  shall  turn  over  the 
balance  on  hand  or  present  the  original  receipt  showing  that  it  has 
been  deposited  in  the  establishment  designated  therefor.  In  the  first 
case  the  judge  shall  order  the  deposit  immediately,  and  in  the  second 
case  that  a  statement  giving  the  date  and  the  amount  of  the  deposit 
be  attached  to  the  record.2 

ART.  1010.  The  accounts  of  the  administrator  and  the  vouchers 
therefor  shall  constitute  a  separate  branch  of  the  administration  record. 

For  the  purpose  of  examining  the  accounts  and  inspecting  the 
administration,  or  taking  any  measures  relating  to  the  correction  or 
approval  of  said  accounts,  they  shall  be  kept  in  the  clerk's  office  for 
examination  by  any  party  who  may  at  any  time  request  permission  to 
do  so.3 

1  This  article  is  applicable  to  intestate  proceedings  only. — Decision  of  March  14-,  1878. 

2  When  the  administrators  of  an  estate  make  a  distribution  of  funds  among  some 
of  the  persons  interested  therein,  taking  a  simple  receipt  therefor,  but  without  any 
other  formality,  it  can  not  be  considered  that  this  partition  has  the  character  of  a 
rendition  of  accounts,  because  it  is  simply  a  private  distribution  which  may  appear 
in  the  accounts  as  payments  to  the  persons  interested. — Decision  of  April  2%,  1885. 

Decisions  relating  to  periodical  accounts  are  not  definite,  because  said  accounts  must 
also  be  presented  at  the  end  of  the  administration,  according  to  article  1012.—  Decision 
of  I )i'<r  in  her  4,  1888. 

:?The  costs  incurred  in  making  the  accounts  are  to  be  defrayed  by  the  administra- 
tor, as  he  receives  an  allowance  therefor. — Decision  of  June  14,  1884' 


198  LAW    OF    CIVIL    PROCEDURE. 

ART.  1011.  When  the  administrator  ceases  in  the  discharge  of  his 
duties  he  shall  render  a  final  account  supplementary  to  those  already 
rendered. 

ART.  1012.  All  the  accounts  of  the  administrator,  including  the  final 
one,  when  he  ceases  to  discharge  his  duties,  shall  be  subject  to  exami- 
nation by  all  parties  for  a  period  common  for  all,  to  be  fixed  by  the 
judge  according  to  the  amount  involved  in  said  accounts. 

ART.  1013.  After  said  period  has  elapsed  without  any  objection  hav- 
ing been  made  to  the  accounts,  or  after  any  objections  made  thereto 
have  been  overruled,  the  judge  shall  render  a  decision  approving  said 
accounts  and  declaring  the  administrator  free  from  liability.  In  the 
same  decision  the  judge  shall  cancel  the  mortgage  securit}^  which  the 
administrator  may  have  executed,  or  shall  order  the  return  of  the  bond 
he  may  have  furnished. 

ART.  1014.  If  the  accounts  should  be  impugned  at  the  proper  time, 
said  objections  shall  be  heard  and  determined  before  the  administrator, 
according  to  the  procedure  prescribed  for  incidental  issues. 

From  the  ruling  terminating  this  issue  an  appeal  may  be  taken  both 
for  review  and  a  stay  of  proceedings.  From  that  rendered  by  the 
audiencia  an  appeal  for  annulment  of  judgment  lies. 

ART.  1015.  The  administrator  is  obliged,  under  his  liability,  to  pre- 
serve the  property  of  the  estate  without  deterioration  and  to  see  that 
it  produces  the  proper  rents,  products,  or  income. 

For  this  purpose  he  must  make  such  ordinary  repairs  to  the  build- 
ings as  may  be  necessary  for  their  preservation,  and  have  the  unrented 
farms  worked  and  fertilized  as  their  proper  cultivation  requires. 

ART.  1016.  When  the  landed  property  requires  extraordinary  repairs 
or  cultivation,  the  administrator  shall  advise  the  court,  which,  after  a 
hearing  of  the  heirs  instituted,  or  of  their  representatives,  and  in  their 
absence,  of  the  deputy  public  prosecutor  in  writing,  after  an  exami- 
nation made  by  experts,  and  after  an  estimate  of  the  costs  thereof  has 
been  prepared,  may  order  that  the  work  be  done  under  private  con- 
tract or  be  let  at  public  auction,  as  he  may  consider  most  advisable  in 
view  of  the  circumstances  of  the  case. 

If  all  or  any  of  the  heirs  instituted  should  fail  to  attend  the  hear- 
ing, the  judge  shall  not  on  that  account  delay  ordering  what  may  be 
proper. 

ART.  1017.  When  the  amount  of  the  estimate  exceeds  5,000  pesetas 
the  work  shall  be  let  to  the  lowest  bidder,  unless  the  heirs,  or  the  dep- 
uty public  prosecutor,  in  a  proper  case,  should  give  their  consent  to 
having  it  done  by  private  contract. 

ART.  1018.  For  the  said  expenses,  legal  costs,  the  payment  of  taxes, 
and  the  other  ordinary  expenses  of  the  estate,  the  judge  may  allow 
the  administrator  to  retain  the  sum  he  may  consider  necessary,  and 


LAW    OF    CIVIL    PEOCEDURE.  199 

shall  order  said  sum  to  be  withdrawn  from  deposit  if  they  can  not  be 
met  by  the  ordinary  income  of  the  estate. 

ART.  1019.  The  administrator  may  sell  at  the  proper  season  and  time 
the  crops  he  gathers  as  the  result  of  his  administration  and  those 

reived  as  rents  of  the  estate,  doing  so  through  a  broker,  if  there  be 
me,  and  depositing  without  delay  the  net  proceeds  thereof,  as  well  as 
11  cash  received  by  way  of  rents  of  the  estate,  in  the  public  establish- 
lent  in  which  the  other  funds  of  the  estate  are  deposited,  subject  to 
orders  of  the  court. 

Certified  copies  of  the  deposit  receipts  shall  be  entered  in  the  record 
ind  the  original  receipts  shall  be  returned  to  the  administrator,  to  be 

stained  in  his  possession. 

ART.  1020.  The  administrator  may  also  lease,  without  public  bid- 
ding, the  dwelling  houses  or  the  rooms  into  which  they  are  divided, 
and  small  farms,  at  the  prices  and  under  the  terms  current  in  the 
locality. 

He  may  also  authorize  the  implied  extension  of  the  leases  pending 
it  the  death  of  the  owner,  or  renew  those  that  have  expired,  under  the 
conditions  stipulated  by  said  owner,  and  at  the  same  or  a  better  price, 
whatever  be  the  importance  or  class  of  the  property. 

ART.  1021.  The  following  properties  must,  at  the  request  of  the 
administrator  of  the  estate,  be  leased  at  a  judicial  public  auction: 

1.  Manufacturing,  industrial,  or  any  other  establishments. 

y.  Rural  properties  the  rental  value  of  which  exceeds  5,000  pesetas. 

3.  Properties  which  must  be  recorded  in  the  registry  of  property, 
according  to  the  provisions  of  the  mortgage  law.1 

ART.  1022.  The  average  price  of  the  rental  of  the  property  during 
the  last  five  years  shall  serve  as  a  basis  for  these  auctions;  otherwise 
the  price  fixed  by  experts  selected  by  the  judge. 

No  bid  lower  than  the  designated  minimum  bid  shall  be  accepted. 

ART.  1023.  The  administrator  shall  prepare  a  statement  of  the  con- 
ditions for  the  auction  and  shall  submit  the  same  to  the  court  for  its 
approval. 

This  document  shall  be  kept  for  the  examination  of  the  bidders  in 
the  office  of  the  clerk  of  the  court  taking  cognizance  of  the  proceed- 
ings, and,  in  a  proper  case,  in  that  of  the  court  within  whose  district 
the  property  is  situate,  this  information  being  given  in  the  edicts,  as 
well  as  the  designated  minimum  bid  for  the  sale,  without  prejudice  to 
beginning  the  auction  with  the  reading  of  said  conditions. 

ART.  1024.  Notice  of  the  auction  shall  be  given  by  edicts  posted  in 
the  public  places  of  the  locality  where  proceedings  are  pending  and  in 
that  where  the  property  is  situate,  and  shall  be  inserted  in  the  official 

1  See  art.  2,  subdivision  5,  and  art.  1280  of  the  Civil  Code. 


200  LAW    OF    CIVIL    PROCEDURE. 

papers  of  both  places,  should  there  be  any,  or,  in  their  absence,  in  the 
Gaceta  of  the  general  government. 

Said  notices  may  also  be  published  in  the  G-aceta  of  Madrid  when 
the  judge  considers  it  proper. 

ART.  1025.  The  public  auction  shall  be  held  thirty  days  after  the 
date  of  the  publication  of  the  edicts.  The  judge  may,  however,  reduce 
this  period  when  circumstances  require  it,  without-,  however,  making 
it  less  than  fifteen  days,  and  shall  name  the  day,  the  hour,  and  the 
place  in  which  the  auction  is  to  be  held,  which  shall  also  be  stated  in 
the  edicts. 

If  the  notices  are  also  to  be  inserted  in  the  G-aceta  of  Madrid,  the 
judge  shall  fix  the  date  of  the  auction  sixty  days  after  the  date  of  such 
publication. 

ART.  1026.  If  no  acceptable  bid  is  offered,  a  second  auction  shall  be 
ordered  with  the  same  formalities  as  the  first,  lowering  the  minimum 
price  to  be  accepted  from  ten  to  fifteen  per  cent,  which  shall  be  fixed 
by  the  judge  as  he  may  deem  proper. 

ART.  1027.  If  again  no  acceptable  bid  is  offered,  the  judge,  after 
hearing  the  heirs  instituted,  in  the  manner  prescribed  in  article  1016, 
and,  in  their  absence,  the  deputy  public  prosecutor,  may  authorize  the 
administrator  to  make  a  private  lease,  or  order  what  he  may  deem  best. 

ART.  1028.  As  a  general  rule  all  of  the  properties  of  the  estate  shall 
be  leased.  There  may  be  excepted  that  which  the  deceased  worked  or 
cultivated  on  his  own  account,  and  any  other  property  which,  owing 
to  special  circumstances  or  in  order  to  make  it  more  profitable,  should 
in  the  opinion  of  the  administrator,  concurred  in  by  the  heirs,  if 
declared,  be  excepted  from  said  general  rule. 

ART.  1029.  During  the  pendency  of  the  intestate  proceedings  none 
of  the  property  inventoried  can  be  alienated.  The  following  are 
excepted  from  this  rule  : 

1.  Property  subject  to  deterioration. 

2.  That  whose  preservation  is  difficult  and  expensive. 

3.  Such  crops  for  whose  sale  there  may  be  circumstances  which  are 
considered  advantageous. 

4.  The  other  property  whose  alienation  may  be  necessary  for  the 
paj^ment  of  debts  or  to  meet  other  obligations  of  the  estate. 

ART.  1030.  The  judge  may,  upon  the  recommendation  of  the  admin- 
istrator and  after  hearing  the  heirs  instituted  in  the  manner  prescribed 
in  article  1016,  and,  in  their  absence,  the  deputy  public  prosecutor, 
order  the  sale  of  any  of  the  aforementioned  properties  at  public  auction 
after  an  appraisement  by  experts. 

The  sale  of  public  securities  shall  be  made  at  their  market  value 
through  an  exchange  agent  or  broker  appointed  by  the  judge. 

ART.  1031.  The  auction  sales  referred  to  in  the  foregoing  article 
shall  be  made  with  the  same  formalities  and  within  the  same  periods  as 


LAW    OF    CIVIL    PROCEDURE.  201 

those  hereinbefore  prescribed  for  leases,  without  any  exception  but  that 
of  reducing  to  ten  days  the  period  for  the  sale  of  crops,  personal 
property,  and  live  stock. 

ART.  1032.  The  administrator  shall  be  entitled  to  the  following  com- 
pensation only: 

1.  Two  per  cent  of  the  net  proceeds  from  the  sale  of  crops,  personal 
property,  or  live  stock  included  in  the  inventory.     Proceeds  from  the 
sales  made  by  him  referred  to  in  article  1019,  shall  be  considered  as 
included  in  number  4  of  this  article. 

2.  One  per  cent  of  the  net  proceeds  from  the  sale  of  real  estate  and 
from  collections  made  on  securities  of  all  kinds. 

3.  One-half  per  cent  of  the  net  proceeds  from  the  sale  of  public 
securities. 

4r.  With  regard  to  other  revenue  received  during  the  administration 
from  sources  other  than  those  mentioned  in  the  foregoing  numbers, 
the  judge  shall  allow  from  four  to  ten  per  cent,  taking  into  consid- 
eration the  income  of  the  estate  and  the  labor  connected  with  the 
administration. 

The  judge  may  also  authorize,  when  he  considers  it  proper,  that  the 

ministrator  be  paid  his  necessary  traveling  expenses  incurred  in  the 
discharge  of  his  duties.1 

ART.  1033.  The  subaltern  managers  which  the  deceased  may  have 
had  beyond  the  town  where  the  proceedings  are  being  held,  for  the 
care  of  his  property,  shall  be  retained  at  the  same  compensation  and 
with  the  same  powers  which  were  granted  them  by  the  said  deceased. 

ART.  1034.  The  said  managers  shall  render  their  accounts  and  for- 
ward what  the}7  may  receive  to  the  judicial  administrator,  considering 
themselves  as  employees  of  the  latter,  but  he  can  not  remove  them 
except  for  good  cause  and  with  the  authority  of  the  judge. 

The  judicial  administrator  may,  with  the  same  authority  and  under 
his  liability,  fill  the  vacancies  which  may  occur. 

TITLE  X. 

TESTAMENTARY  PROCEEDINGS. 

SECTION  I —  General  provisions. 

ART.  1035.  Testamentary  proceedings  may  be  voluntary-  or  necessary. 
ART.  1036.  They  are  voluntary  when  instituted  by  a  legitimateparty.2 

1  The  administrator  is  not  entitled  to  any  other  recompense  but  that  mentioned  in 
the  different  clauses  of  this  article. — Decision  of  March  21,  1878. 

The  costs  of  collection  constitute  part  of  the  administration,  and  if  a  decision 
allows  a  fixed  amount  for  the  expenses  of  the  administration,  the  cost  of  collection 
can  not  be  included  therein. — Decision  of  March  29,  1884. 

2  Until  the  action  becomes  prescribed,  the  institution  of  voluntary  testamentary 
proceedings  is  proper  for  the  liquidation  of  the  hereditary  portions. — Decision  of  May 
28,  1888. 


202  LAW    OF    CIVIL    PROCEDURE. 

ART.  103T.  A  legitimate  party  to  institute  testamentary  proceedings 
shall  be: 

1.  Any  of  the  testamentary  heirs. 

2.  The  surviving  spouse. 

3.  Any  of  the  legatees  of  an  aliquot  part  of  the  estate.1 

4.  Any  creditor,  provided  he  presents  a  written  instrument  conclu- 
sively proving  his  claim.2 

ART.  1038.  The  voluntary  heirs  and  the  legatees  of  an  aliquot  part 
cannot  institute  voluntary  testamentary  proceedings  when  the  testator 
has  expressly  prohibited  it. 

ART.  1039.  Nor  can  such  proceedings  be  instituted  hy  creditors: 

1.  When  their  claims  are  secured  by  mortgage  or  other  sufficient 
guaranty. 

2.  When  otherwise  the  heirs  give  them  sufficient  security  to  secure 
their  claims  independently  of  the  property  of  the  deceased. 

ART.  1040.  Testamentary  proceedings  shall  be  called  necessary  in 
the  cases  wherein  the  judge  must  institute  them  ex  qfficio.  Such  cases 
are: 

1.  When  all  or  any  of  the  heirs  are  absent  and  have  no  legal  repre- 
sentative in  the  place  where  proceedings  are  to  be  instituted. 

2.  When  the  heirs,  or  any  of  them,  are  minors  or  incapacitated, 
unless  they  are  represented  by  their  parents.3 

ART.  1041.  In  such  cases  any  of  the  judges  mentioned  in  rule  5  of 
article  63  may  institute  proceedings,  taking  the  steps  indicated  in  said 
rule  and  in  article  958. 

1  The  right  of  the  legatees  of  an  aliquot  part  of  the  estate  cannot  be  extended  to 
anyone  else,  and  it  does  not  therefore  include  the  legatees  of  specific  and  determined 
things,  and  therefore  said  legatees  do  not  have  the  legal  capacity  to  institute  testa- 
mentary proceedings. — Decision  of  June  22,  1880, 

2  Although  according  to  the  Law  of  Civil  Procedure  heirs  may,  among  others,  insti- 
tute testamentary  proceedings,  a  simple  statement  of  being  an  heir  is  not  sufficient  if 
impugned,  because  from  such  time  there  arises  a  question  which  must  be  previously 
decided,  and  which  must  be  heard  in  an  ordinary  action,  whether  the  right  alleged 
is  or  is  not  true. — Decision  of  September  29,  1877. 

Executors,  no  matter  how  full  their  powers  may  be,  are  not  considered  legitimate 
parties  for  the  institution  of  voluntary  testamentary  proceedings. — Decision  of  Jwu 
23,  1883. 

Heirs  are  considered  legitimate  parties  for  the  institution  of  testamentary  proceed- 
ings; but  not  the  persons  who  believe  themselves  entitled  to  be  heirs. — Decision  oj 
January  28,  1889. 

3  When  the  heir  instituted  dies  before  the  testator,  necessary  testamentary  proceed- 
ings may  be  instituted  ex  officio,  because  the  unknown  heir  must  be  considered  as 
absent.—  Decision  of  June  23,  1883. 

When  the  testator  authorizes  his  executors  to  discharge  the  duties  of  accountants 
and  liquidators  of  the  estate,  notwithstanding  the  fact  that  he  leaves  children  under 
age,  it  is  understood  that  he  wishes  to  prevent  the  institution  of  necessary  testa- 
mentary proceedings. — Decision  of  June  30,  1862. 

A  judgment  deciding  whether  testamentary  proceedings  are  necessary  or  voluntary 
is  final  for  the  purposes  of  annulment  of  judgment. — Decision  of  April  15,  1862. 


LAW    OF    CIVIL    PBOCEDUEE.  203 

ART.  1042.  In  the  first  case  of  article  1040,  as  soon  as  the  relatives 
appear  in  person  or  by  means  of  a  legal  representative,  there  shall  be 
delivered  to  them  the  property  and  effects  of  the  deceased,  and  the 
judicial  intervention  shall  cease  unless  requested  by  any  of  the  legiti- 
mate parties  for  the  purpose  of  instituting  voluntary  probate 
proceedings. 

ART.  1043.  Even  though  the  heirs  are  minors  or  incapacitated,  nec- 
ossary  testamentary  proceedings  can  not  be  instituted,  if  such  proceed- 
ings have  been  expressly  prohibited  by  the  testator. 

If  the  provisional  measures  referred  to  in  article  1041  have  been 
commenced,  they  shall  be  suspended  as  soon  as  said  prohibition  is 
proven  by  a  copy  of  the  will. 

ART.  1044.  When  the  testator  has  forbidden  such  judicial  interven- 
tion in  his  will,  in  order  that  such  prohibition  may  produce  the  effects 
mentioned  in  the  foregoing  article  and  in  article  1038,  it  shall  be  neces 
sary  that  he  shall  have  appointed  one  or  more  persons,  duly  empow- 
ered, so  that  either  in  the  character  of  executors,  accountants,  or  any 
other  capacity  they  may  execute  extra  judicially  all  the  operations  in 
the  administration  of  the  estate.1 

ART.  1045.  Should  the  testator  have  established  rules  distinct  from 
those  prescribed  in  this  law  for  the  inventory,  appraisement,  liquida- 
tion, and  partition  of  his  property,  the  voluntary  testamentary  heirs 
and  the  legatees  shall  respect  them  and  submit  thereto. 

The  same  rule  shall  apply  to  forced  heirs  provided  that  their  legi- 
limcs*  are  not  injured  or  damaged.3 

ART.  1046.  The  interested  parties  may,  at  any  stage  of  voluntary 
testamentary  proceedings,  terminate  the  same  and  make  such  agree- 
ments as  they  may  consider  proper. 

For  this  purpose,  in  addition  to  the  heirs  and  legatees,  the  creditors 
who  may  have  instituted  the  proceedings  and  the  surviving  spouse 
shall  be  considered  interested  parties. 

Should  they  request  it  by  common  consent,  the  judge  shall  order 
the  proceedings  closed  and  the  property  placed  at  the  disposal  of  the 
heirs. 

Articles  1045  and  1044  of  the  law  of  procedure  do  not  affect  the  absolute  right  of 
a  forced  heir  to  institute  universal  testamentary  proceedings. — Decision  of  July  5,1887. 

The  second  paragraph  of  article  1057  of  the  Civil  Code  not  only  confirms  the  pro- 
visions.of  this  article,  but  extends  the  same  in  order  to  prevent  judicial  intervention 
and  even  approval,  if  the  testator  has  prohibited  it,  and  notwithstanding  the  pro- 
visions of  article  1048. 

2Legitime:  That  portion  of  a  parent's  estate  of  which  he  cannot  disinherit  his 
children  without  a  legal  cause. 

3  The  provisions  of  article  1045  apply  only  to  the  case  that  a  testator  has  estab- 
lished rules  distinct  from  those  prescribed  in  the  law  for  the  inventory,  appraisement, 
and  division  of  his  property,  affecting  the  form  or  manner  of  performing  these  acts, 
and  not  the  absolute  right  of  forced  heirs  to  institute  the  said  universal  proceed- 
ings.— Decision  of  July  5,  1887. 


204  LAW    OF    CIVIL    PROCEDURE. 

ART.  1047.  In  the  necessary  proceedings,  after  the  judicial  inven- 
tory and  deposit  of  the  property  have  been  made,  as  prescribed  in 
article  1094,  the  persons  interested  may^  also  desist  from  further  pro- 
ceedings, in  order  to  attend  extra- judicially  all  other  steps  in  the  set- 
tlement of  the  estate. 

In  such  case  the  judge  shall  not  place  the  property  at  the  disposal 
of  the  heirs  until  after  the  partition  thereof  has  been  approved. 

ART.  1048.  The  liquidations  and  partitions  of  the  inheritance  made 
extra- judicially,  even  though  made  by  accountants  appointed  by  the 
testator,  must  be  presented  for  judicial  approval,  providing  that  a 
minor,  an  incapacitated  person,  or  an  absentee  whose  residence  is 
unknown,  has  any  interest  therein  as  an  heir  or  legatee  of  an  aliquot 
part  thereof. 

ART.  1049.  In  order  to  obtain  said  approval,  the  procedure  pre- 
scribed in  articles  1076  et  seq.  shall  be  observed. 

Partitions  made  by  the  testators  themselves  are  not  included  in  the 
provisions  of  this  and  the  foregoing  article,  and  do  not  require  judi- 
cial approval.1 

ART.  1050.  To  minors,  incapacitated  persons,  or  absentees  are 
reserved  the  rights  granted  them  by  law  in  addition  to  those  vested  in 
them  by  the  provisions  of  this  title. 

ART.  1051.  Testamentary  proceedings  do  not  debar  heirs  from  exer- 
cising at  the  proper  time  and  in  the  proper  manner  the  right  to  delib- 
erate or  the  benefit  of  inventory. 

When  instituting  proceedings,  they  may  request  that  the  legal  term 
for  deliberating  be  granted  them,  or  state  that  they  accept  the  inher- 
itance under  the  benefit  of  an  inventory.2 

In  either  case,  the  inventoiy  having  been  regularly  made,  the  judge 
shall  order  that  it  be  submitted  to  them  so  that  they  may  decide  what 
they  may  consider  most  conducive  to  their  interests. 

ART.  1052.  Estates  of  deceased  persons  may  be  declared  insolvent  or 
in  bankruptcy,  in  the  same  manner  as  individuals,  in  which  case  they 
shall  be  subject  to  the  procedure  prescribed  for  the  said  proceedings. 

SECTION  II. —  Voluntary  testamentary  proceedings. 

ART.  1053.  He  who  institutes  voluntary  testamentary  proceedings 
must  present  the  death  certificate  of  the  person  whose  succession  is  in 
question,  and  if  this  be  impossible,  another  document  or  proof  of  death, 
and  the  will  of  the  deceased. 

ART.  1054.  If  such  person  be  a  legitimate  party,  and  the  requisites 
mentioned  in  the  foregoing  article  are  complied  with,  the  judge  shall 
order  that  the  petition  made  in  his  name  be  ratified. 

1  See  arts.  1056  and  1057  of  the  Civil  Code. 

2  See  art.  1019  of  the  Civil  Code. 


LAW    OF    CIVIL    PROCEDURE.  205 

This  ratification  having  been  made,  the  judge  shall  consider  proceed- 
ings instituted,  and  shall  order  the  heirs,  the  legatees  of  aliquot  parts, 
and  the  surviving  spouse,  if  there  be  one,  to  be  formally  cited  to  appear, 
and  also,  in  a  proper  case,  the  creditors  who  may  have  instituted  the 
proceedings. 

ART.  1055.  If  there  be  any  of  said  heirs  or  legatees  who,  by  reason 
of  being  minors  or  incapacitated,  have  a  tutor  or  curator,  the  citation 
shall  be  served  upon  the  latter. 

Should  they  have  no  tutor  or  curator,  one  shall  be  appointed,  or  they 
shall  be  required  to  appoint  one  according  to  law,  unless  they  are  rep- 
resented by  their  parents. 

ART.  1056.  When  the  tutor,  curator,  father,  or  mother  should  have 
an  interest  in  the  estate  incompatible  with  that  of  the  minor  or  inca- 
pacitated person  whom  they  represent,  a  special  curator  ad  Utem  shall 
be  appointed  according  to  law,  whose  intervention  shall  be  limited  to 
the  acts  wherein  such  incompatibility  exists.1 

ART.  1057.  The  heirs  and  other  absent  interested  parties  who  may 
have  a  known  place  of  residence  shall  be  cited  to  appear  personally. 

Those  who  have  no  known  residence  shall  be  cited  by  means  of 
edicts  posted  in  the  public  places  and  inserted  in  the  official  news- 
papers of  the  locality  where  the  proceedings  are  pending,  if  there  be 
any,  and  in  the  Boletin  of  the  province,  or  in  its  absence,  in  the 
Gaceta  of  the  general  government.  Should  the  judge  consider  it 
necessary,  in  view  of  the  circumstances  of  the  case,  the  edict  shall  be 
published  in  the  0-ac-eta  de  Madrid  or  in  the  last  place  of  residence  of 
the  absentee. 

ART.  1058.  The  deputy  public  prosecutor  shall  also  be  cited  to  appear 
in  order  to  represent  the  persons  interested  in  the  estate  who  are  minors 
or  incapacitated  and  have  no  legal  representative,  the  absentees  whose 
place  of  residence  is  unknown,  and  those  who,  requiring  a  citation  in 
person  by  reason  of  their  having  a  known  residence,  can  not  be  found 
at  the  place  where  the  proceedings  are  being  held. 

ART.  1059.  The  representation  of  the  deputy  public  prosecutor  shall 
cease — 

With  regard  to  minors  and  incapacitated  persons,  as  soon  as  a  tutor 
or  curator  has  been  appointed  for  them. 

With  regard  to  absentees  whose  whereabouts  is  unknown,  as  soon  as 
they  appear  in  the  proceedings  or  can  be  cited  personally,  although 
they  should  afterwards  again  absent  themselves. 

With  regard  to  absentees  cited  personally,  as  soon  as  they  appear, 
or  twenty  days  from  the  time  of  the  citation  if  they  reside  in  the  terri- 
tory of  the  respective  island,  two  months  if  they  reside  in  Porto  Rico 
and  must  claim  their  rights  in  Cuba,  or  vice  versa,  and  six  months  if 
residing  in  any  other  place. 

1  See  art.  165  of  the  Civil  Code. 


206  LAW    OF    CIVIL    PROCEDURE. 

In  the  last  case  the  proceedings  shall  be  continued  in  default  without 
further  citation  of  parties  properly  cited  and  who  have  not  appeared. 

ART.  1060.  If  the  person  instituting"  the  action  should  request  at  the 
proper  time  a  judicial  supervision  of  the  estate,  it  shall  be  so  ordered, 
and  the  steps  prescribed  in  article  958  shall  be  taken  in  such  manner 
as  to  cause  the  least  possible  injury.1 

ART.  1061.  Said  intervention  can  only  be  ordered  for  the  judicial 
preparation  of  the  inventories,  when  requested  after  the  thirty  days 
following  the  death  of  the  testator,  or  from  the  time  when  notice  of 
the  death  has  been  received. 

ART.  1062.  The  court  clerk  shall  be  commissioned  to  make  the 
judicial  inventoiy,  without  prejudice  to  the  right  of  the  judge  to  be 
present  at  the  making  thereof,  in  whole  or  in  part,  when  one  of  the 
interested  parties  requests  it  and  he  considers  it  necessary. 

ART.  1063.  The  court  clerk  shall  commence  to  make  the  judicial 
inventory  within  eight  days  after  the  making  thereof  was  ordered, 
fixing  a  day  and  hour  therefor  which  shall  be  communicated  to  the 
persons  interested  when  citing  them  to  appear  for  said  purpose. 

ART.  1064.  The  following  persons  shall  be  cited  to  appear  at  the 
making  of  the  inventory: 

1.  The  heirs  or  their  legal  representatives  who  may  be  at  the  place 
where  the  proceedings  are  pending,  or  who  may  have  entered  their 
appearance  of  record,  and  the  deputy  public  prosecutor  (promotor 
fiscal)  for  the  absentees,  if  there  be  any. 

2.  The  surviving  spouse,  or  his  or  her  legal  representative. 

3.  The  legatees  of  an  aliquot  part. 

4.  The  creditors  who  may  have  instituted  the  proceedings  or  who 
may  have  been  admitted  therein  as  legitimate  parties. 

ART.  1065.  All  the  persons  mentioned  in  the  foregoing  article  having 
been  cited  to  appear,  at  the  specified  day  and  hour  the  court  clerk 
shall  proceed,  with  those  who  may  be  present,  to  make  the  inventory, 

1  As  these  proceedings  are  not  the  legal  means  to  question  and  disturb  rights  of 
which  third  persons  are  possessed  and  in  quiet  enjoyment,  but  only  a  series  of  judicial 
acts  prescribed  by  law  in  order  that,  at  the  instance  of  those  having  a  right  to  insti- 
tute the  said  proceedings,  the  inheritance  be  distributed  among  them  when  they 
have  not  been  able  to  come  to  an  agreement  as  to  its  extrajudicial  partition,  the 
intervention  authorized  by  the  law  of  civil  procedure  must  be  limited  to  the  property 
and  rights  which  have  not  left  the  possession  of  the  testator  and  which  are  not  pos- 
sessed under  a  more  or  less  questionable  title  by  third  persons,  without  prejudice  to 
the  right  of  the  heirs  to  institute  the  proper  actions  for  the  purpose  of  recovering  f;>r 
the  inheritance  such  property  as  rightfully  belongs  to  the  same,  as  neither  this  law 
nor  jurisprudence  denies  to  third  persons  who  are  prejudiced,  when  such  principles 
are  violated,  the  right  to  appear  in  such  action,  not  as  legitimate  parties  in  the  ques- 
tion of  the  partition  of  the  inheritance,  but  in  view  of  the  right  which  they  have,  not 
to  be  dispossessed  or  disturbed  in  their  possession  until  they  have  been  heard  and 
defeated  in  court. — Decision  of  December  26,  1876. 


LAW    OF    CIVIL    PROCEDURE.  207 

which  shall  contain  a  description  of  the  property  of  the  estate  accord- 
ing to  the  following1  order: 

1.  Cash. 

2.  Public  securities. 

3.  Jewelry. 
Live  stock. 

5.  Products. 

6.  Personal  property. 

7.  Real  estate. 

8.  Rights  and  actions. 

All  shall  be  stated  in  the  list,  which  must  be  made  with  proper  clear- 
ness and  precision,  and  if  the  inventory  can  not  be  concluded  on  the 
day  appointed  it  shall  be  continued  on  the  following  days.1 

ART.  1066.  There  shall  also  be  made  with  the  same  care  a  special 
inventory  of  the  written  instruments,  documents,  and  important  papers 
that  may  be  found. 

ART.  1067.  After  the  measures  prescribed  in  the  foregoing  articles 
have  been  performed,  the  judge  shall  call  a  meeting  of  the  persons 
interested,  naming  a  day  within  the  next  eight  days,  so  that  they  may 
agree  upon  the  administration  of  the  estate,  its  custody,  and  preservation. 

ART.  1068.  If  such  agreement  can  not  be  reached,  the  judge  shall 
decide  what  shall  be  done  according  to  the  circumstances,  subject  to 
the  following  rules: 

1.  The  cash  and  public  securities  shall  be  deposited  in  the  public 
establishment  provided  for  this  purpose. 

2.  The  jewelry,  personal  property,  live  stock,  and  products  collected 
shall  be  deposited,   the  depositary  being   required   to   give   proper 
security. 

3.  The  widower  or  widow,  or,  in  their  absence,  the  interested  per- 
son who  has  the  largest  interest  in  the  estate,  if  in  the  judgment  of 
the  judge  he  possesses  the  capacity  necessary  to  discharge  the  duties 
of  the  office,  shall  be  appointed  administrator. 

4.  If  these  requisites  should  not  be  possessed  by  the  person  having 
the  greatest  interest  in  the  estate,  or  if  the  interest  of  all  the  persons  in 
interest,  or  some  of  them,  should  be  equal,  the  judge  may  appoint  any 
one  of  said  persons,  or  a  disinterested  party. 

5.  Whoever  be  the  administrator  appointed,  he  shall  furnish  security 
sufficient  to  answer  for  the  personal  property  he  may  receive  and  for 
one  year's  rent  of  the  real  estate,  unless  the  interested  parties  waive 
the  security  by  common  consent. 

6.  If  no  agreement  is  reached  as  to  this  point,  the  security  shall  be 

1  The  inventory  does  not  become  null  and  void  if  the  order  prescribed  in  this  article 
in  not  observed,  provided  that  all  the  property  is  therein  described. — Decision  of 
June  4,  1867. 


208  LAW    OF    CIVIL    PROCEDURE. 

in  proportion  to  the  interest  in  the  estate  of  those  who  refuse  to 
relieve  him  of  this  obligation.1 

ART.  1069.  At  the  meeting  referred  to  in  article  106T  the  interested 
parties  must  also  agree  as  to  the  appointment  of  one  or  more  auditors 
to  make  the  partition  of  the  estate.  Should  they  not  so  agree,  each 
party  or  group  of  parties  having  equal  interests  in  the  estate  shall 
designate  an  auditor,  and  efforts  shall  be  made  to  secure  an  agreement 
to  appoint  an  auditor  to  settle  differences,  who  must  be  an  attorney. 

In  courts  where  there  still  exist  judicial  auditors  by  reason  of  an 
alienated  office,2  and  until  said  offices  have  reverted  to  the  State  they 
shall  continue  discharging  the  duties  which  this  law  confers  upon  the 
auditors  appointed  by  the  parties. 

Judicial  auditors  by  reason  of  an  alienated  office  may  be  challenged 
for  the  same  causes  and  in  the  same  manner  as  experts. 

ART.  1070.  The  parties  attending  said  meeting  shall  also  agree  to  the 
appointment  of  the  experts  to  be  employed  by  the  auditors  for  the 
purpose  of  appraising  the  property,  or  they  may  authorize  the  latter 
to  appoint  one  or  more  by  common  consent  and  for  each  to  appoint  his 
own,  if  an  agreement  can  not  be  reached. 

ART.  1071.  If  any  of  the  persons  present  at  the  meeting  should 
refuse  to  appoint  an  auditor  or  expert,  he  shall  be  considered  as  agree- 
ing to  the  appointments  made  by  the  other  interested  parties. 

ART.  1072.  If  no  agreement  can  be  reached  at  the  meeting  on  the 
appointment  of  an  auditor-umpire,  the  provisions  of  articles  615  to 
624  of  this  law  shall  be  observed.  The  same  shall  be  done  in  case  the 
experts  do  not  agree  in  their  appraisements. 

1  Neither  the  judicial  administrator  nor  his  bondsmen  have  any  other  obligations 
than  those  specified  in  the  order  of  appointment. — Decision  of  November  24,  1883. 

A  judgment  which  declares  valid  the  proceedings  had  for  the  appointment  of  a 
depositary  of  the  property  of  an  estate  does  not  put  an  end  to  the  main  proceedings, 
nor  does  it  make  its  continuation  impossible  and  therefore  it  is  not  definite  for  the 
purposes  of  annulment  of  judgment. — Decision  of  March  6,  1885. 

2  One  of  the  evils  from  which  Spain  has  suffered  since  the  earliest  period  was  the 
alienation  of  offices  and  employments  of  all  kinds,  there  being  included  therein  the 
offices  of  court  clerks,  solicitors,  and  even  offices  of  the  department  of  public  prose- 
cution, it  having  reached  such  a  point  that  in  consideration  of  a  sum  of  money  the 
right  would  be  granted  to  fill  all  the  offices  of  court  clerks  in  an  entire  province. 

Formerly,  the  royal  power  being  absolute,  it  was  considered  that  the  King  had 
the  power  to  dispose  at  will  of  everything  that  belonged  to  the  nation,  from  which 
was  derived  the  privilege  not  only  to  sell  all  public  offices  and  employments  for  the 
purpose  of  covering  the  deficit  of  the  Treasury,  but  also  to  donate  them  gratuitously 
or  as  a  remuneration  for  other  services,  there  often  being  new  offices  created  for  the 
sole  purpose  of  placing  them  upon  the  market. 

The  evils  of  this  system  are  still  being  felt,  as  a  great  many  offices  are  in  the  hands 
of  private  individuals  by  virtue  of  ownership  notwithstanding  the  fact  that  their 
reversion  to  the  State  has  been  recognized  as  a  necessity,  their  owners  to  be  indem- 
nified for  the  loss  of  said  offices  in  the  manner  considered  most  convenient. — Alcu- 
billa,  Diccionario  de  Legislation  y  Jurisprudentia. 


LAW    OF    CIVIL    PROCEDURE.  209 

ART.  1073.  After  the  auditors  or,  in  a  proper  case,  the  experts 
have  been  appointed,  and  after  they  have  accepted  their  appointments, 
the  record  of  the  proceedings  shall  be  delivered  to  the  former,  and  all 
matters,  documents,  or  papers  which  they  may  require  for  making 
the  inventory,  in  case  it  has  not  been  made,  and  for  making  the 
appraisement,  liquidation,  and  partition  of  the  estate  shall  be  placed 
at  the  disposal  of  both  the  auditors  and  experts. 

ART.  1074.  The  acceptance  of  the  auditors  shall  give  the  right  to 
each  of  the  interested  parties  to  compel  them  to  fulfill  their  duties,  which 
must  be  concluded  within  a  reasonable  period,  taking  into  account  the 
scope  and  difficulty  of  the  proceedings. 

ART.  1075.  Also,  at  the  instance  of  an  interested  party,  the  judge 
may  fix  a  time  within  which  the  auditors  shall  submit  their  report  of 
the  partition,  and  if  they  do  not  do  so,  they  shall  be  liable  for  all  losses 
and  damages. 

ART.  1076.  The  report  of  the  partition  shall  be  submitted  by  the 
auditors  drafted  on  ordinary  paper  and  signed  by  all  of  them,  and 
shall  contain: 

1.  A  statement  of  the  property  which,  in  the  opinion  of  each,  is 
subject  to  partition. 

2.  The  appraisement  of  the  property  included  in  said  statement. 

3.  The  liquidation  of  the  estate,  its  partition,  and  the  award  made  to 
each  of  the  participants. 

ART.  1077.  The  auditor-umpire,  summarizing  the  questions  on  which 
the  parties  agree,  shall  confine  himself,  in  accordance  with  law,  to  set- 
tling such  proceedings  in  which  there  is  disagreement,  endeavoring  to 
avoid  both  the  nondivision  as  well  as  the  excessive  partition  of  the 
landed  property. 

ART.  1078.  A  statement  of  the  partition  made  by  the  auditors  shall 
be  subject  to  inspection  in  the  office  of  the  clerk  of  the  court  for  eight 
days,  the  parties  being  notified  thereof. 

ART.  1079.  This  delay  shall  be  dispensed  with  if  all  the  parties 
appear  in  court,  either  in  person  or  in  writing,  stating  their  agree- 
ment with  any  of  the  plans  of  partition.  In  the  second  case  it  shall 
not  be  necessary  to  ratify  it  when  all  have  signed  the  instrument  or 
presented  it  in  person,  which  fact  shall  be  certified  to  by  the  court 
clerk  in  a  written  statement. 

ART.  1080.  Said  period  having  elapsed  without  objection,  or  as  soon 
as  the  parties  interested  have  stated  their  agreement,  the  judge  shall 
order  the  record  brought  before  him  and  shall  render  a  ruling  approv- 
ing the  statement  of  partition,  and  ordering  it  to  be  placed  on  record 
upon  payment  of  the  amount  due  for  the  proper  stamped  paper.1 

ART.  1081.  All  questions  in  dispute  between  the  auditors  shall  be 
discussed  and  decided  in  the  statement  of  the  umpire. 

1  See  articles  1051  et  seq.  of  the  Civil  Code. 
5190 14 


210  LAW    OF    CIVIL    PROCEDURE. 

ART.  1082.  If  within  the  period  fixed  in  article  1078  the  parties 
raise  no  objection  to  the  plan  of  the  auditor-umpire,  or  state  their 
agreement  with  any  other,  the  judge  shall  approve  the  same  and  shall 
order  it  to  be  recorded,  upon  the  payment  of  the  amount  due  for  the 
proper  stamped  paper. 

ART.  1083.  If  the  interested  parties  or  any  of  them  request,  within 
eight  days,  that  the  record  of  the  proceedings  and  the  statement  of  the 
partition  be  delivered  to  them  for  examination,  the  judge  shall  order 
said  delivery  for  a  period  of  fifteen  days  for  each  party  making  such 
request. 

ART.  1084.  At  the  expiration  of  the  fifteen  d&ys  mentioned  in  the 
foregoing  article,  without  any  objections  being  filed,  the  record  shall 
be  recovered,  without  the  necessity  of  compulsory  process,  and  the 
statement  of  partition  shall  be  approved  in  the  manner  provided  for  in 
article  1080. 

ART.  1085.  If  any  objection  to  the  statement  of  partition  made  by 
the  umpire-auditor  should  be  filed  against  the  same  within  the  period 
allowed  therefor,  the  judge  shall  call  a  meeting  of  the  interested  par- 
ties and  said  auditor,  so  that,  after  mutual  deliberation,  they  may  agree 
upon  what  they  may  deem  most  convenient. 

The  proper  minutes  shall  be  made  of  this  meeting,  which  shall  be 
signed  by  all  those  present. 

ART.  1086.  If  all  the  interested  parties  should  agree  upon  all  ques- 
tions raised,  the  agreement  shall  be  carried  into  effect,  and  the  umpire- 
auditor  shall  insert  the  changes  agreed  upon  in  his  statement  of  partition. 

ART.  1087.  If  no  agreement  is  reached,  the  procedure  prescribed  for 
the  proper  ordinary  action,  according  to  the  amount  involved,  shall 
be  followed,  and  the  .papers  shall  first  be  delivered  to  the  parties  who 
first  requested  the  delivery  to  them  of  the  partition  reports  according 
to  article  1083. 

ART.  1088.  The  representative  of  the  department  of  public  prose- 
cution shall  also  be  heard  when  the  appraisement  made  and  included 
in  the  statement  of  partition  is  impugned  for  bribery  or  fraudulent 
agreements  between  the  arbitrator  expert  and  one  or  more  of  the  par- 
ties in  interest  for  the  purpose  of  increasing  or  reducing  the  value  of 
any  part  of  the  property. 

ART.  1089.  If  sufficient  reasons  exist  for  believing  that  bribery  or 
fraudulent  agreements  have  occurred  in  making  the  appraisement,  the 
judge  shall  order  that  an  authenticated  copy  be  made  of  all  that  may 
be  necessary  in  order  to  institute  criminal  proceedings  against  the 
guilty  parties. 

ART.  1090.  If  the  interested  parties  cancel  the  appraisement  impugned, 
referred  to  in  the  foregoing  article,  and  have  another  made  within  the 
time  prescribed  for  the  introduction  of  evidence,  the  action  shall  be  ter- 
minated by  a  judgment.  Otherwise  the  judgment  shall  be  suspended 


s 


in 

: 


LAW    OF    CIVIL    PROCEDURE.  211 

until  a  final  judgment  is  rendered  in  the  proceedings  instituted  by 
virtue  of  the  provisions  of  said  article. 

AET.  1091.  After  the  partition  has  been  definitely  approved,  there 
shall  be  delivered  to  each  of  the  interested  parties  the  part  adjudged 

him,  together  with  the  title  deeds,  after  the  court  clerk  has  entered 

ereupon  a  memorandum  of  the  adjudication. 

As  soon  as  said  partition  has  been  recorded,  there  shall  be  given  to 
the  participants  requesting  it  a  certified  copy  of  their  interest  and 
their  respective  adjudication. 

ART.  1092.  When  the  proceedings  have  been  instituted  at  the  instance 

one  or  more  creditors,  the  delivery  of  the  property  shall  not  be 

ade  to  any  of  the  heirs  or  legatees  until  the  creditors  have  been  paid 
in  full  or  have  been  given  satisfactory  security  for  their  claims. l 

SECTION  III. — Necessary  testamentary  proceedings. 


ART.  1093.  Necessary  testamentary  proceedings  shall  only  be  insti- 
ited  in  the  cases  prescribed  in  article  1040,  subject  to  the  limitations 
lentioned  in  article  1043. 

ART.  1094.  After  the  necessary  steps  have  been  taken  for  the  security 
the  property,  books,  and  papers,  referred  to  in  article  1041,  these 
>roceedings  shall  be  continued  as  prescribed  for  voluntary  proceed- 
igs,  with  the  following  modifications: 

1.  The  inventory  shall  be  judicially  made. 

2.  The  property  shall  always  be  placed  in  deposit,  without  any  agree- 
lent  to  the  contrary  being  permissible. 

3.  The  administrator  shall  furnish  sufficient  security  for  the  prop- 
*ty  administered  by  him.     If  the  interested  parties  who  are  of  age 
ive  relieved  him  of  this  obligation,  the  securit}^  then  shall  be  in  pro- 
portion to  the  participation  which  the  minors,  incapacitated  persons, 
or  absentees  have  in  the  estate,  and  it  can  not  in  any  case  be  waived. 

Until  these  measures  have  been  adopted  the  judicial  intervention 
can  not  cease,  if  requested  as  prescribed  in  article  1047. 

SECTION  IV. — Administration  of  testate  inheritances.2 

ART.  1095.  In  all  the  testamentary  proceedings  the  dispositions  of 
the  testator  relating  to  the  administration  of  his  estate  shall  be  observed 
und  complied  with  until  said  estate  is  delivered  to  the  heirs. 

ART.  1096.  If  the  testator  should  have  made  no  disposition  in  this 
regard,  the  administration  of  the  estate  shall  be  governed  by  the  rules 
prescribed  for  intestate  inheritances  in  Section  IV  of  the  foregoing 

1  See  articles  1026, 1031,  1032,  and  1034  of  the  Civil  Code  with  regard  to  the  rights 
of  creditors,  and  articles  1082  et  seq.  with  regard  to  the  payment  of  hereditary  debts. 

2  See  articles  965,  966,  paragraph  2,  967, 1020,  and  1026  et  seq.  of  the  Civil  Code  relat- 
ing to  the  administration  of  hereditary  property. 


212  LAW    OF    CIVIL    PROCEDURE. 

title,  the  provisions  of  which  shall  be  applicable  thereto,  with  the 
exception  of  those  of  article  1007. 

ART.  1097.  The  administrator  of  the  estate  shall  represent  the  same 
only  in  matters  relating  directly  to  the  administration  thereof,  its  cus- 
tody and  preservation,  and  for  that  purpose  he  may  and  must  take  the 
necessary  steps  and  institute  such  proceedings  as  may  be  proper. 

ART.  1098.  When  judicial  intervention  is  being  had  upon  the  prop- 
erty of  the  estate,  the  heirs  may  be  present  at  the  opening  of  the 
correspondence,  which,  according  to  article  968,  must  be  done  in  the 
presence  of  the  administrator. 

ART.  1099.  At  the  instance  of  the  interested  parties,  the  judge  may 
order  that  there  be  delivered  to  the  heirs  and  legatees  and  to  the  sur- 
viving spouse  for  maintenance,  from  the  income  of  the  administration, 
a  sum  not  to  exceed  the  net  product  of  that  part  of  the  estate  to  which 
they  may  be  entitled. 

The  judge  shall  fix  the  amount  and  the  period  when  the  administra- 
tor shall  make  such  payments.1 

TITLE  XI. 

ADJUDICATION  OF  PROPERTY  TO  PERSONS  NOT  DESIGNATED  BY  NAME.2 

ART.  1100.  When  a  testator  has  ordered  that  the  whole  or  a  part  of 
his  property  be  distributed  among  his  relatives  within  a  certain  degree, 
among  the  poor  or  other  persons  under  certain  conditions,  but  without 
designating  them  by  name,  in  order  to  establish  the  legal  right  and 
make  the  adjudication  of  the  property,  the  procedure  established  in 
this  title  shall  be  observed. 

ART.  1101.  The  same  procedure  shall  be  employed  for  the  adjudica- 
tion of  the  property  of  any  foundations  to  be  distributed  among  the 

1  Maintenance  must  be  allowed  from  the  date  it  is  judicially  requested,  because  it 
is  to  be  presumed  that  it  is  not  needed  before  it  is  thus  requested,  no  matter  if  it  was 
requested  extrajudicially. — Decision  of  April  15,  1885. 

It  is  incorrect  to  suppose  that  article  1099  of  the  Law  of  Civil  Procedure  grants  to 
the  judge  of  first  instance  the  exclusive  jurisdiction  to  fix  and  regulate  the  amount 
to  be  allowed  for  maintenance  to  the  heirs  and  legatees  and  to  the  surviving  spouse, 
because  neither  is  this  declaration  made  in  the  said  article  nor  can  it  be  taken  as 
granted,  because  as  the  ruling  ordering  and  fixing  the  amount  of  said  maintenance 
may  be  appealed  from  for  review  and  for  a  stay  of  proceedings,  as  soon  as  appealed 
from  it  is  the  duty  of  the  audiencia  to  take  cognizance  of  the  entire  matter  in  second 
instance,  without  any  limitation  whatsoever  and  vested  with  the  same  powers  as 
the  judge  to  consider  and  determine  the  amount  thereof. — Decision  of  March  26, 1888. 

2  In  order  to  institute  the  universal  proceedings  referred  to  in  this  title,  it  is  an  indis- 
pensable requisite  that  one  of  the  cases  referred  to  in  the  first  two  articles  of  the  same 
is  attendant;  that  is  to  say,  that  the  testator  has  ordered  that  all  or  a  part  of  his  prop- 
erty be  distributed  among  his  relatives  within  a  certain  degree,  among  the  poor  or 
other  persons,  but  without  stating  their  names,  etc. — Decision  of  March  2,  1887. 


LAW    OF    CIVIL    PROCEDURE.  213 

relatives  designated  by  the  founder  or  by  law,  and  in  similar  cases 
where  the  courts  are  called  upon  to  adjudicate  upon  a  question  of 
right. 

ART.  1102.  These  universal  proceedings1  may  be  instituted  by  any 
or  all  the  persons  who  consider  themselves  as  having  any  right  to  the 
property,  as  well  as  by  the  representative  of  the  department  of  public 
prosecution  on  behalf  of  the  State,  provided  the  testator  has  not  oth- 
wlse  disposed. 

ART.  1103.  The  petition  shall  be  prepared  according  to  the  provi- 
sions of  article  523,  and  shall  be  accompanied  by  the  will  or  foundation 
and  all  other  documents  upon  which  the  action,  as  well  as  the  right  of 
the  petitioner  to  the  property,  may  be  based. 

A  copy  of  the  petition  on  ordinary  paper  shall  accompany  the 
original. 

ART.  1104.  If  from  the  said  documents  it  should  appear  that  the 
petition  is  based  upon  any  of  the  cases  referred  to  in  articles  1100  et 
.,  the  judge  shall  admit  it,  ordering  that  those  who  believe  them- 

Ives  entitled  to  the  property  be  called  by  edicts  to  appear  and  assert 

ch  rights  within  a  period  of  six  months,  counted  from  the  date  of 

e  publication  of  the  same  in  the  Gaceta  de  Madrid. 

ART.  1105.  The  edicts  referred  to  in  the  foregoing  article  shall  be 
published  and  posted  in  the  public  places  of  the  locality  where  the 
proceedings  are  being  held,  in  the  town  or  towns  where  the  property 
is  located,  and  in  the  other  places  where,  taking  into  consideration  the 
birthplace  of  the  testator  or  the  object  of  the  institution,  it  may  be 
presumed  that  such  persons  reside. 

They  shall  be  inserted  also,  if  there  be  any,  in  the  Boletin  Oficial 
of  the  province  or  provinces  to  which  they  appertain,  in  the  Gaceta  of 
Habana  or  of  Porto  Rico,  in  a  proper  case,  and  in  that  of  Madrid, 
attaching  to  the  record  a  copy  of  the  periodical  in  which  the  publica- 
tion may  be  made. 

ART.  1106.  The  edicts  shall  contain  the  name,  surname,  and  birth- 
place of  the  testator  or  founder,  the  date  of  the  will  or  foundation, 
and  anything  else  that  may  furnish  information  as  to  the  object  of  the 
institution,  and  as  to  the  persons  entitled  to  participate  in  the  prop- 
erty, as  well  as  the  name  and  surname  of  the  person  or  persons  who 
may  have  instituted  the  proceedings,  and  their  degree  of  relationship 
to  the  testator  or  the  reasons  upon  which  they  base  their  rights. 

ART.  HOT.  The  representative  of  the  department  of  public  prosecu- 
tion, on  behalf  of  the  State,  shall  be  a  party  to  these  proceedings  until 
the  same  are  concluded  by  a  final  judgment. 

For  such  purpose  the  deputy  public  prosecutor  of  the  court  shall  be 
cited  and  summoned  to  appear  as  soon  as  the  petition  has  been  admitted, 

1  See  note  to  article  166. 


214  LAW    OF    CIVIL    PROCEDURE. 

and  the  copy  of  the  latter  presented  by  the  plaintiff  shall  be  delivered 
to  him  and  he  shall  be  notified  of  all  the  orders  therein  issued. 

ART.  1108.  All  parties  who  appear  in  the  action  alleging  a  right  to 
the  property  must  file  the  documents  upon  which  they  base  their 
claims,  and  in  a  proper  case  the  corresponding  genealogical  tree. 

Should  they  not  have  any  of  these  documents  at  hand,  they  shall  indi- 
cate the  archives  in  which  they  maybe  filed,  offering  to  present  them  at 
the  proper  time. 

The  instruments  and  documents  shall  be  attached  to  the  record  in  the 
order  in  which  they  are  presented. 

ART.  1109.  Upon  the  expiration  of  the  period  prescribed  in  the  first 
edicts,  a  second  call  shall  be  made  for  the  same  time,  in  the  same 
manner,  and  with  the  same  publicity,  as  prescribed  in  article  1105. 

In  these  edicts  shall  be  stated  the  fact  that  it  is  the  second  call  to 
appear  and  the  names  of  the  persons  who  may  have  already  appeared 
alleging  a  right  to  the  property,  with  a  statement  of  the  degree  of 
relationship  or  the  reasons  upon  which  they  base  their  claim. 

ART.  1110.  At  the  same  time  and  with  the  same  requisites  a  third 
call  shall  be  made,  upon  the  expiration  of  the  period  of  the  second, 
stating  in  the  same  that  it  is  the  third  and  last,  and  adding  the  admo- 
nition that  any  party  who  does  not  enter  appearance  within  this  third 
and  last  period  shall  not  be  heard  in  the  proceedings. 

ART.  1111.  After  the  court  clerk  shall  have  certified  to  the  fact  that 
the  periods  required  by  the  three  calls  have  expired,  and  that  the  peti- 
tions of  all  persons  appearing  have  been  attached  to  the  record,  the 
said  record  shall  be  given  to  the  deputy  public  prosecutor  for  the 
period  which  the  judge  may  consider  necessary,  but  which  can  not 
exceed  twenty  days,  in  order  that  he  may  report  as  to  whether  univer- 
sal proceedings  are  proper,  and  if  the  parties  who  have  appeared,  or 
any  of  them,  possess  the  qualifications  necessary  for  requesting  an 
adjudication  of  the  property. 

ART.  1112.  Should  the  deputy  public  prosecutor  object  because  of 
the  impropriety  of  the  proceedings,  or  because  none  of  the  claimants 
has  the  qualifications  required  in  order  to  participate  in  the  property, 
the  judge  shall  order  that  the  parties  be  notified  so  that  they  may  defend 
their  rights  in  an  ordinary  action,  should  they  so  desire. 

ART.  1113.  Should  the  deputy  public  prosecutor  make  no  objection, 
and  if  there  be  two  or  more  claimants,  the  judge  shall  order  a  meeting 
to  be  held  on  a  fixed  day  and  hour  within  the  following  fifteen  days. 

At  this  meeting,  which  may  be  attended  by  the  deputy  public  prose- 
cutor and  the  counsel  of  the  parties,  they  shall  discuss  their  rights  to  the 
property,  and  the  results  shall  be  stated  in  the  minutes,  which  shall  be 
signed  by  all  those  present. 

ART.  1114.  If  in  the  meeting  there  should  be  a  unanimous  agree- 
ment as  to  the  right  to  the  property,  and  as  to  the  participation  of  each, 


u 

: 


LAW    OF    CIVIL    PROCEDURE.  215 

or  in  case  there  is  but  one  claimant,  and  the  deputy  public  prosecutor 
has  made  no  objection,  the  judge  shall  order  the  record  to  be  brought 
before  him  with  a  citation  of  the  parties,  and  shall  render  judgment, 
making  such  declarations  as  he  may  consider  proper  according  to  law. 

This  judgment  may  be  appealed  from,  both  for  review  and  a  stay  of 
proceedings. 

ART.  1115.  Before  rendering  said  judgment,  the  judge  may,  in  the 
furtherance  of  justice,  order  that  the  comparison  of  any  document  of 
doubtful  validity  be  made,  or  that  any  other  document  which  he  con- 
siders necessary  be  included  in  the  record. 

ART.  1116.  When  no  agreement  has  been  reached  at  the  meeting, 
the  judge  shall  order  the  proceedings  closed,  and  that  the  parties  allege 
their  rights  in  a  declaratory  action. 

ART.  1117.  Both  in  this  case  as  well  as  in  the  case  referred  to  in 
Hide  1112,  the  persons  interested  may  assert  their  rights  in  the 
ordinary  action  corresponding  to  the  amount  of  the  property  involved, 
and,  if  it  be  unknown,  in  an  action  of  greater  import,  all  parties  mak- 
ing common  cause  litigating  jointly  and  with  the  same  counsel. 

ART.  1118.  For  the  proper  order  of  these  proceedings,  the  following 
rules  shall  be  observed: 

1.  The  record  shall  be  delivered  to  the  party  instituting  the  pro- 
ceedings, in  order  that,  within  a  period  of  ten  days,  he  may  amend  his 
petition  by  realleging  or  modifying  his  claims. 

2.  If  said  party  should  abandon  his  petition  by  acknowledging  a  bet- 
ter right  in  one  or  more  of  the  other  claimants,  the  record  shall  be 
delivered  to  them  in  order  that  they  may  assert  their  claims;  and  if 
no  such  acknowledgment  is  made,  said  delivery  shall  be  made  to  the 
party  who  first  appears  in  the  proceedings. 

3.  The  complaint  shall  be  referred,  without  a  new  summons,  to  the 
other  claimants  in  the  order  in  which  they  entered  appearance  in  the 
proceedings,  and  the  record  shall  be  delivered  for  a  period  of  ten  days 
to  each  party  to  enable  him  to  present  his  respective  claims. 

4.  In  the  case  referred  to  in  article  1112  the  deputy  public  prosecutor 
shall  be  considered  as  the  defendant,  and  the  record  shall  be  delivered 
to  him  for  his  answer  thereto,  after  all  the  claimants  have  presented 
their  claims  to  the  property. 

5.  The  deputy  public  prosecutor  shall  also  be  considered  a  party  in 
the  case  referred  to  in  article  1116,  and  the  record  shall  be  delivered 
to  him  as  soon  as  the  claimants  have  filed  their  claims,  in  order  that  he 
may  request  what  he  may  consider  proper  on  behalf  of  the  interests  of 
the  State,  or  in  reference  to  the  fulfillment  of  the  religious  bequests  to 
which  the  property  is  subject.     If  he  should  have  allegations  to  make 
with  regard  to  these  matters,  he  shall  return   the   record  with  the 
indorsement  "  Examined"  (Vistos),  in  which  case  a  new  hearing  shall 


216  LAW    OF    CIVIL    PROCEDUKE. 

not  be  granted  him  unless  he  should  request  it;  but  he  shall  be  notified 
of  all  the  orders  issued  until  final  judgment  is  rendered. 

6.  The  petitions  of  the  claimants  shall  be  drafted  in  the  manner 
prescribed  for  complaints,  accompanied  by  as  many  copies  thereof  as 
there  are  other  litigants,  to  whom  they  shall  be  delivered  for  the  pur- 
poses referred  to  in  article  519  with  regard  to  successive  services  in 
which  the  record  shall  no  longer  be  delivered. 

7.  As  soon  as  all  the  claimants  have  presented  their  claims,  the  pro- 
ceedings shall  be  continued  according  to  the  procedure  prescribed  for 
ordinary  actions  of  greater  or  lesser  import,  as  the  case  may  be,  after 
answer  is  made  to  the  complaint;  and  the  judge  shall  order  the  inter- 
ested parties,  who  have  not  already  done  so,  that  those  making  com- 
mon cause   shall,  in   the  further  prosecution  of  the  same,  litigate 
jointly  and  with  the  same  counsel. 

AKT.  1119.  When  the  right  of  one  or  more  of  the  claimants  is 
acknowledged,  the  same  judgment  shall  determine  what  may  be  proper 
in  order  to  insure  the  fulfillment  of  the  religious  bequests  against  the 
estate,  even  though  no  request  is  made  therefor  and  no  discussion 
thereupon  has  taken  place  in  the  proceedings. 

ART.  1120.  As  soon  as  the  judgment  becomes  final  it  shall  be  exe- 
cuted in  the  proper  manner,  with  the  intervention  of  the  representa- 
tive of  the  department  of  public  prosecution  only  in  case  it  is  necessary 
to  insure  the  fulfillment  of  religious  bequests  or  any  others  in  favor  of 
the  State  or  of  some  corporation  or  institution  dependent  thereupon. 

ART.  1121.  When  the  estate  is  to  be  divided  among  several  inter- 
ested parties,  and  judicial  intervention  is  requested  or  becomes  neces- 
sary, the  procedure  prescribed  for  testamentary  proceedings  shall  be 
observed. 

ART.  1122.  With  regard  to  the  administration  of  the  property  which 
may  be  the  object  of  these  proceedings,  the  dispositions  of  the  testator 
shall  be  observed  and  enforced. 

If  he  should  have  left  no  instructions,  or  if  the  property  has  for  any 
reason  been  abandoned,  the  judge  shall  take  the  necessary  measures 
for  the  security,  custody,  and  preservation  of  the  said  property,  the 
provisions  established  for  intestate  administrations  being  observed. 

ART.  1123.  The  judge  shall  also  see  that  all  charges  imposed  upon 
the  estate  by  the  testator  or  founder  shall  be  punctually  paid  out  of 
the  income  derived  therefrom. 

ART.  1124.  No  one  shall  be  admitted  as  a  party  to  these  proceedings 
who  did  not  enter  appearance  during  the  periods  fixed  in  the  edicts, 
even  though  they  allege  that  the  judicial  calls  did  not  come  to  their 
knowledge,  but  they  shall  reserve  their  right  and  institute  an  ordinary 
action  thereupon  against  the  interested  party  or  parties  to  whom  the 
property  has  been  adjudicated,  as  soon  as  the  judgment  becomes  final. 


LAW    OF    CIVIL    PROCEDURE.  217 

ART.  1125.  Notwithstanding  the  provisions  of  the  foregoing  article, 
if  in  the  cases  referred  to  in  articles  1112  and  1116,  an  ordinary  action 
has  been  instituted  in  order  to  secure  a  declaration  upon  the  right  to 
the  property,  any  person  who  believes  himself  to  have  a  preferential 
right  thereto  may  appear  in  such  action  and  shall  be  considered  a  party 
thereto,  whatever  be  the  status  thereof,  but  in  no  case  shall  there  be 
any  retrogression  in  the  proceedings,  the  provisions  of  articles  765  et 
*<•<].  being  observed. 

ART.  1126.  Neither  shall  other  actions  be  admitted  which,  during 
the  prosecution  of  these  universal  actions,  may  be  separately  presented, 
either  in  the  same  or  any  other  court  by  parties  not  appearing  in  said 
universal  actions  and  presented  for  the  purpose  of  securing  a  declara- 
tion of  their  rights  to  the  property. 

ART.  1127.  Such  actions  shall  be  suspended  until  a  final  judgment 
is  rendered  in  the  universal  proceedings,  and  thereafter  said  actions 
shall  be  admitted  as  against  the  parties  in  favor  of  whom  the  declara- 
tion of  right  and  the  adjudication  of  the  property  may  have  been 
made  in  the  judgment. 

TITLE  XII. 

INSOLVENCY  PROCEEDINGS. 

SECTION  I. — Composition  and  respite. 

ART.  1128.  Every  debtor,  not  a  merchant,  before  presenting  him- 
self as  an  insolvent,  may  judicially  request  of  his  creditors  composi- 
tion and  respite,  or  both. 

This  request  must  necessarily  be  accompanied  by— 

1.  A  statement  giving  the  names  of  all  his  creditors,  their  domicile, 
the  origin,  time,  or  date  of  the  credits,  and  the  amount  of  each  one. 

2.  Another  detailed  and  exact  statement  of  his  property  and  its 
market  value  according  to  his  opinion.     He  can  omit  from  this  state- 
ment only  such  of   his   property  as  may    be  exempt  from   seizure 
according  to  article  1447. 

These  statements  shall  be  signed  by  the  debtor  or  by  his  representa- 
tive having  a  special  power  of  attorney  therefor. 

ART.  1129.  The  judge  shall  act  upon  said  request,  and  shall  imme- 
diately order  a  meeting  of  the  creditors  to  be  called,  fixing  a  period 
therefor,  which  can  not  exceed  thirty  days,  in  order  that  those  who 
reside  in  the  respective  territory  of  the  islands  of  Cuba  and  of  Porto 
Rico  may  attend,  and  the  place  where  and  the  day  and  hour  when  it 
is  to  be  held. 

ART.  1130.  At  the  request  of  the  debtor,  the  creditors  residing 
beyond  the  territory  mentioned  in  the  foregoing  article  shall  be  per- 
sonally cited  to  appear,  in  which  case  the  period  above  mentioned  may 


218  LAW    OP    CIVIL    PROCEDURE. 

be  extended  to  such  time  as  the  judge  may  consider  necessary  to  enable 
them  to  attend  the  meeting. 

AKT.  1131.  Only  the  creditors  included  in  the  statement  filed  by  the 
debtor  shall  be  cited  to  appear  and  attend  said  meeting. 

The  citation  of  persons  having  a  known  domicile  shall  be  made  per- 
sonally by  means  of  a  writ.  Others  shall  be  cited  by  means  of  edicts 
in  the  manner  prescribed  in  article  269. 

ART.  1132.  In  the  writs  of  citation,  as  well  as  in  the  edicts,  besides 
making  the  statement  prescribed  in  article  272,  it  shall  be  ordered  that 
the  creditors  appear  at  the  meeting  with  the  evidence  of  their  claims, 
without  which  requisite  they  shall  not  be  permitted  to  attend  the 
same. 

ART.  1133.  If  executions  are  pending  against  the  debtor,  they  shall 
not  be  consolidated  with  this  proceeding,  but  the  course  thereof  shall 
be  suspended,  if  the  executions  are  in  process  of  enforcement  and  before 
the  sale  of  the  property,  if  the  debtor  so  requests  of  the  judge  taking 
cognizance  of  the  proceedings  for  composition  and  respite,  who  shall 
give  notice  thereof  to  the  other  judges  in  writing. 

ART.  1134.  Executions  against  property,  specially  mortgaged,  are 
excepted  from  the  preceding  provisions. 

The  suspension  granted  by  virtue  of  the  provisions  of  the  foregoing 
article  shall  be  raised  dejure  if  two  months  should  elapse  without  the 
composition  and  respite  being  granted,  or  as  soon  as  it  is  denied. 

ART.  1135.  The  creditors  may  be  represented  at  the  meeting  by  a 
third  person,  duly  authorized  by  power  of  attorney,  which  document 
must  be  presented  in  order  to  be  attached  to  the  record. 

Persons  authorized  to  appear  for  more  than  one  creditor  shall  have 
but  one  personal  vote,  but  the  claims  they  represent  shall  be  taken 
into  consideration  to  form  the  majority  of  the  amount  represented. 

ART.  1136.  In  order  that  said  meeting  may  be  held  it  is  necessary 
that  the  number  of  creditors  attending  the  same  should  represent  at 
least  three-fifths  of  the  liabilities. 

ART.  1137.  The  meeting  shall  be  held  on  the  day  fixed,  under  the 
chairmanship  of  the  judge  and  with  the  assistance  of  the  court  clerk, 
subject  to  the  following  rules: 

1.  The  court  clerk  shall  make  a  memorandum  of  the  persons  present 
and  their  claims  which  he  shall  insert  in  the  minutes  of  the  meeting, 
and  at  the  same  time  the  judge  shall  examine  the  written  evidence  of 
the  credits  and  the  powers  of  attorney,  in  a  proper  case.     If  those  who 
have  complied  with  these  formalities  represent  at  least  three-fifths  of 
the  liabilities,  the  judge  shall  declare  the  meeting  open. 

2.  Immediately  thereafter  the  articles  of  this  law  having  reference 
to  the  object  of  the  meeting,  the  petition  of  the  debtor,  and  the  state- 
ment of  the  debts  and  property  filed  with  said  petition,  shall  be  read 
and  the  discussion  opened. 


LAW    OF    CIVIL    PROCEDURE.  219 

3.  After  two  creditors  have  spoken  in  favor  and  two  against,  if  this 
privilege  has  been  requested,  and  after  the  debtor  or  his  representa- 
tive has  spoken  as  often  as  may  be  considered  necessary  to  reply  to  the 
remarks  made,  and  explain  any  doubts  that  may  arise,  the  judge,  when 
he  considers  that  the  propositions  have  been  sufficiently  discussed,  shall 
declare  the  discussion  closed. 

4.  The  debtor  may  modify  his  proposition  or  propositions  in  view 
>f  the  result  of  the  discussion,  or  may  insist  upon  those  which  he  may 

already  have  made,  and  without  further  discussion  the  judge  shall 
clearly  and  precisely  put  the  several  propositions  before  the  meeting 
for  vote  upon  the  same. 

5.  The  vote  shall  always  be  taken  by  a  call  of  names  and  shall  be 
inserted  in  the  minutes,  the  vote  of  the  majority  being  decisive. 

6.  In  order  to  form  a  majority  it  is  necessary: 

First.  That  two-thirds  of  the  votes  of  the  creditors  taking  part  in 

voting  unite  upon  the  same  proposition. 

Second.  That  the  credits  of  those  whose  votes  form  the  majority 
lount  to  at  least  three-fifths  of  the  total  liabilities  of  the  debtor. 

7.  After  the  vote  has  been  announced,  all  protests  which  ma}^  be 
lade  against  the  majority  vote  shall  be  admitted  and  recorded  arid  the 
leeting  shall  be  closed. 

The  proper  minutes  shall  be  drafted  making  a  succinct  state- 
icnt  of  all  the  proceedings  of  the  meeting,  inserting  literally  the  propo- 
sition or  propositions  which  have  been  voted  upon,  with  the  votes 
cast,  which,  after  having  been  read  and  approved,  shall  be  signed  by 
the  judge,  by  all  those  who  may  have  voted,  and  by  one  of  the  persons 
present  for  those  who  can  not  write,  at  their  request,  and  by  the  court 
clerk. 

ART.  1138.  Creditors  for  personal  services,  maintenance,  funeral 
expenses,  drawing  of  the  last  will,  and  for  preliminary  testate  or  intes- 
tate proceedings,  as  well  as  those  secured  by  a  legal  or  voluntary  mort- 
gage, need  not  attend  the  meeting  or  may  abstain  from  taking  part  in 
the  voting. 

If  they  do  not  attend,  they  shall  not  be  bound  to  accept  an}r  agree- 
ment therein  adopted. 

If  they  take  part  in  the  voting,  they  shall  be  bound  in  the  same 
manner  as  the  other  creditors. 

ART.  1139.  The  wife  of  the  debtor  can  not  take  part  in  the  discus- 
sion nor  in  the  voting  of  the  meeting  in  which  composition  or  respite 
is  discussed. 

ART.  1140.  The  proposition  of  composition  or  respite  shall  be  con- 
sidered as  rejected  if  the  number  of  creditors  required  for  holding  a 
meeting  does  not  attend,  or  if  the  two  majorities  mentioned  in  rule  6 
of  article  1137  are  not  received  in  favor  thereof,  even  if  the  contrary 
vote  does  not  receive  such  majority. 


220  LAW    OF    CIVIL    PROCEDURE. 

ART.  1141.  If  the  decision  of  the  meeting  should  be  a  refusal  of  the 
composition  or  respite  or  no  decision  was  reached  on  account  of  a  lack 
of  number,  the  proceedings  shall  be  closed  without  further  remedy, 
and  the  persons  interested  shall  be  at  liberty  to  make  use  of  the 
rights  to  which  they  may  be  entitled. 

ART.  1142.  If  the  decision  should  be  favorable  to  the  debtor,  it  may 
be  objected  to  within  the  ten  days  following  the  date  of  the  meeting 
by  any  of  the  creditors  personally  cited  who  did  not  attend  the  same, 
or  who,  having  attended,  dissented  from  and  protested  against  the  vote 
of  the  majority. 

•  For  this  purpose  such  creditors  may  examine  the  decision  of  the 
meeting  in  the  clerk's  office. 

ART.  1143.  The  creditors  who  were  not  personally  cited  to  attend 
the  meeting  shall  be  notified  of  the  favorable  decision  of  the  same,  if 
the  debtor  requests  it,  within  the  three  days  following  the  holding  of 
the  meeting,  if  they  reside  at  any  of  the  places  mentioned  in  article 
1145.  * 

ART.  1144.  When  notice  is  served  upon  them  they  shall  be  informed 
therein,  under  the  penalty  of  nullity,  that  if  they  do  not  object  to  said 
decision  at  once,  or  by  appearing  in  person  within  the  three  days 
following,  the  same  shall  be  binding  upon  them  and  they  can  not 
impugn  it  thereafter. 

ART.  1145.  In  the  cases  referred  to  in  the  two  foregoing  articles  the 
period  within  which  objections  may  be  made  shall  be  fifteen  days  for 
the  creditors  who  reside  within  the  territory  of  the  islands  of  Cuba  or 
Porto  Rico,  and  thirty-six  days  for  those  who,  residing  in  either  of 
them,  must  exercise  their  rights  in  the  other,  counting  from  the  day 
of  the  service  of  the  notification. 

ART.  1146.  The  provisions  of  the  three  foregoing  articles  shall  not 
be  applicable  to  the  creditors  who  reside  in  the  Peninsula  and  the  other 
Spanish  territories  of  Europe  or  Africa,  or  in  foreign  lands,  who  shall 

1Although  according  to  article  903  the  agreement  is  binding  upon  all  creditors  hav- 
ing claims  of  a  date  prior  to  the  declaration  of  bankruptcy,  who  may  have  been  cited 
according  to  law,  or  who  having  been  notified  of  the  approval  of  the  agreement 
should  not  have  objected  thereto  within  the  period  prescribed  in  the  law  of  civil 
procedure,  when  these  formalities  were  not  complied  with  in  regard  to  a  creditor 
who,  notwithstanding  the  fact  that  his  residence  was  knowrn  and  was  indicated  in 
the  credit  document  itself,  was  not  personally  cited  to  attend  the  meeting,  and  the 
debtor  also  failed  to  request?  within  the  period  fixed  in  article  1143  of  the  said  law 
that  he  be  informed  of  the  favorable  decision  of  said  meeting,  and  the  person  inter- 
ested was  not  able  to  exercise  the  right  granted  him  by  the  articles  following,  there 
is  no  doubt  that  he  is  not  prejudiced  by  the  notice  of  the  decision  of  the  approval 
made  to  him  extemporaneously  and  when  he  had  already  instituted  the  preliminary 
proceedings  of  an  executory  action,  nor  does  the  agreement  arrived  at  have  any  effi- 
cacy with  regard  to  him  as  prescribed  by  articles  1150  and  1151. — Decision  of  Septem- 
ber 27,  1889. 


LAW    OF    CIVIL    PROCEDURE.  221 

reserve  their  rights  against  the  debtor,  notwithstanding  the  agreement, 
if  they  did  not  attend  the  meeting. 

ART.  1147.  The  only  causes  for  which  agreements  for  composition 
or  respite  may  be  impugned  are: 

1.  A  defect  in  the  forms  employed  for  the  calling,  holding,  and 
liberations  of  the  meeting. 

2.  Want  of  personal  capacity  or  representative  character  in  any 
rson  voting  with  the  majority. 

3.  Fraudulent  connivance  between  one  or  more  creditors  and  the 
btor  to  vote  in  favor  of  composition  or  respite. 

A  fraudulent  increase  of  any  claims  in  order  to  secure  a  majority 

amounts. 

ART.  1148.  The  objection  shall  be  made  according  to  the  pro- 
ions  of  article  523,  and  shall  be  heard  and  determined  according  to 

e  procedure  prescribed  for  incidental  issues,  the  defendant  being  the 
debtor,  and  the  creditors  who  appear  stating  their  decision  to  support 
the  resolution  of  the  meeting. 

All  those  sustaining  the  same  issue  shall  litigate  jointly  and  be  rep- 

sented  by  the  same  counsel. 

The  judgment  rendered  may  be  appealed  from  for  review  and  for  a 

y  of  proceedings. 

ART.  1149.  After  the  expiration  of  the  ten  days  fixed  in  article  1142, 
and,  in  a  proper  case,  the  periods  granted  in  article  1145,  without  any 
objection  having  been  made,  the  judge  shall  order  the  record  brought 
before  him,  and  he  shall  render  a  ruling  ordering  that  the  agreement 
be  carried  out  and  declaring  that  the  interested  parties  are  bound 
thereby. 

He  shall  also  issue  such  orders  at  the  instance  of  a  legitimate  party 
as  may  be  proper  for  its  execution. 

ART.  1150.  No  remedy  whatsoever  shall  lie  against  the  ruling  order- 
ing that  the  agreement  be  carried  out  in  the  case  of  the  foregoing 
article,  and  it  shall  be  binding  upon  all  the  creditors  included  in  the 
list  furnished  by  the  debtor,  excepting  such  creditors  only  as  are  men- 
tioned in  article  1138  who  may  have  abstained  from  voting  and  those 
who  not  having  been  personally  cited  for  the  meeting  nor  appeared  at 
the  same,  did  not  receive  the  notice  authorized  by  article  1143. 

ART.  1151.  These  creditors  and  those  not  included  in  said  list  shall 
reserve  their  right  against  the  debtor  unimpaired  notwithstanding  the 
agreement,  unless  they  expressly  or  impliedly  concur  therein. 

ART.  1152.  All  the  costs  of  these  proceedings  shall  be  taxed  against 
the  debtor  who  may  have  instituted  the  same. 

The  costs  of  incidental  issues  upon  the  objection  to  the  agreement 
of  the  meeting  may  be  taxed  against  the  person  who  may  have  inter- 
posed such  issues  upon  insufficient  grounds. 


3 


222  LAW    OF    CIVIL    PROCEDURE. 

ART.  1153.  If  the  debtor  should  not  fulfill,  in  whole  or  in  part,  the 
agreement  of  composition  or  respite,  the  creditors  shall  recover  all 
the  rights  they  may  have  had  against  the  debtor  before  the  agreement. 

In  such  case  the  debtor  may  be  declared  an  involuntary  insolvent  at 
the  instance  of  the  creditors,  or  any  one  of  them,  even  though  there 
be  no  execution  pending  against  him. 

SECTION  II. — Declarations  of  insolvency . 

ART.  1154.  Insolvency  proceedings  may  be  voluntary  or  involuntary. 

They  shall  be  voluntary  when  the  debtor  himself  institutes  them  by 
assigning  all  his  property  to  his  creditors. 

They  shall  be  involuntary  when  instituted  at  the  instance  of  the 
creditors  or  any  of  them.1 

ART.  1155.  The  petition  of  a  voluntary  insolvent  shall  be  aceom- 
panied  by  the  iollowing,  without  which  it  can  not  be  admitted: 

1.  A  full  and  detailed  signed  statement  of  all  his  property,  with 
the  value  at  which  he  estimates  the  same.     From  this  statement  shall 
be  excepted  the  property  which,  in  accordance  with  article    111 
not  subject  to  execution. 

2.  A  detailed  statement  of  his  debts,  with  their  date  and  origin  and 
the  names  and  domiciles  of  the  creditors. 

3.  A  report  containing  the  reasons  which  oave  ri-e  to  hi.-  petition 
for  a  declaration  of  insolvency. 

ART.  1156.  A  declaration  of  voluntary  insolvency  can  only  be,  made 
at  the  instance  of  one  or  more  legitimate  creditor-  who  prove  the 
following: 

1.  That  two  or  more  executions  are  outstanding  :i^;iin  t  the  debtor-. 

2.  That  no  property  has  been  found  free  from  other  ch;ir;j< •-.  -ufli- 
cient  in  value  to  cover  the  amount  claimed. 

In  the  ease  of  article  1153  proof  of  the-e  two  fact-  -hull  not  be 
nece--ary  in  order  to  make  a  declaration  of  in-olvcn' 

ART.  1157.  A  creditor  who   request*   a   declaration    of    in-olv« 
luu.-t  furthermore  prove;  hi-  per-onal  capacity  by  attachm;.'  the  title  of 
hi-  credit  by  virtue  of  which  an  execution  may  be  proceeded  with,  or 
a  certificate  of  the  ruling  by  which,  at  his  in.-tance.  the  execution  wan 
ordered,  if  he  doc-  not  request  .-aid  declaration   in  the  -ame  ;<ction  in 
which  the  execution  issued. 
, — , 

1  Voluntary inHolvencv  :  .,••-  ran  not.  be  instituted  when  there  i-  no  J,P,; 

to  assign.— /• 

' In involtmtaiy  insolvency  procee^lings  the  cre^li  .-iihori/ed  to  di 

agree  upon  what  they  may  eonnider  adv'inable,  provide!  they  <\<>  n 
laws. — Derixion  <>f  .January  4,  t 

When  the  purchaser  of  property  of  the  innolvent  j-  in  fjiie-tior,  ;u,<l  not  a  ere<litor, 
the  general  principle  of  law  in  not  applicable  according  to  which  all  the  < -re'lit-,- 
obliged  to  submit  to  said  proceeding,  apj*earin#  in  the  order  fixed   in  the  cla.1- 
tion,  according  to  the  character  of  their  credit*.—  /' 


LAW    OF    CIVIL    PKOCEDl'KK. 

If  the  judge  believes  that  the  requisites  demanded  for 

etive  case<  in  the  two  foregoing  articles  have  been  fulfilled, 

ho  shall  roiuior  a  ruling  declaring  the  insolvency  and  ordering  that  the 

mentioned  in  the  following  section  be  taken. 

Otherwise  he  shall  refuse  to  make  the  declaration,  which  decision 
,y  U*  appealed  from  for  a  review  and  for  a  stay  of  proceedings?.1 

:r.  1  l«M*.  The  ruling  containing-  the  declaration  of  insolvency  shall 
immediately  he  communicated  to  the  insolvent,  who  shall,  by  virtue 
thereof,  become  incapacitated  for  the  administration  of  his  property. 
:r.  lltiO.  The  debtor  may  object  to  the  declaration  of  insolvency 
de  at  the  instance  of  his  creditors,  within  three  days  after  he  has 
been  not  i  tied  thereof. 

If  the  three  days  should  pass  without  any  objection  l>eing  made,  said 
larution  shall  become  tinal  (fe/wr«*. 

:r.  llol.  If  the  debtor  should  object  within  the  proper  time,  the 
:\l  shall  be  delivered  to  his  solicitor  for  a  period  of  four  days,  which 
can  not  be  extended,  in  order  that  he  may  formulate  his  objections, 
after  the  separate  record  prescribed  in  the  following  article  has  been 

I    in. 

:r.  llh-J.   While  the  objection-  of  the  debtor  are  being  hoaitl  and 
d  upon,    the  execution   of    the    measures    taken    and    any    other 
proper  measures  shall  be  proceeded  with,  in  accordance  with  the  pro- 
visions of  the  following  section,  for  taking  possession  of  the  property  , 
lx>oks,  papers,  ami  correspondence. 

In  order  to  do  so  :i  separate  record  shall  be  made  with  certified 
copie^  of  the  order  of  the  declaration  of  insolvency,  and  of  the  pro- 
ceedings which  may  have  been  had  with  said  end  in  view. 

ART.  HIM.  Said  objection  shall  be  heard  and  determined  according 
to  the  procedure  prescribed  for  incidental  issues,  but  limiting  to  four 
the  period  for  the  dcli\cr\  of  the  record  to  the  creditor,  at  whose 
instance  the  declaration  of  insolvency  may  have  been  made,  and  the 
period  for  the  taking  *'f  ON  idence  to  a  period  of  ten  days,  which  can 
not  he  extended. 

\\i\\  llhl.  Other  creditors  may  be  parties  to  said  incidental  issue, 
but  thoM'\\ho  oppose  a  declaration  of  insolvency  must  litigate  with 
the  debtor  and  he  represented  by  t  he  same  counsel,  while  those  who 
sustain  the  opposing  creiliior  shall  in  the  same  manner  unite  with  the 
latter. 

The  decision    which    may    be   rendered    may    be    appealed    from    for 
\\    and    for  a    sia\   of    proceedings,  without    staying   the  -eparate 

referred  to  in  the  foregoing  art  icle. 

AIM.    L165,    If   the  declaration   of   in^ol\enc\    be  \  acated,  a» 
the  decision    ix   linal.  a   eop\    of   the   ailjudging   part    thereof  shall    be 


1  Vn  appeal  I.M  aniuilmrut  of  jml^iurut   iloos  not    lir  l'f\>tu    tlu>  mlin>*s  tvliitin>;  ti> 
Mi    ol  in^olvrtu-y.  —  DwisioH  o    »S«-i/«v-. 


224  LAW    OF    CIVIL    PROCEDURE. 

inserted  in  the  other  separate  records  of  the  insolvency  proceeding, 
and  the  judicial  intervention  ceasing,  the  funds,  property,  books, 
papers,  and  correspondence  over  which  such  intervention  was  had 
shall  be  delivered  to  the  debtor  by  the  depositary  and  court  clerk. 

The  said  depositary,  if  he  performed  any  administrative  functions, 
shall  render  an  account  thereof  to  the  debtor. 

AKT.  1166.  If  the  declaration  of  insolvency  should  have  been  pub- 
lished, the  decision  vacating  the  same  shall  also  be  published  in  the 
same  manner,  if  the  debtor  should  request  it. 

ART.  1167.  In  the  case  of  article  1165  the  debtor  shall  reserve  his 
right  to  demand  indemnification  for  losses  and  damages  of  the  cred- 
itor at  whose  instance  the  declaration  was  made,  if  said  creditor  acted 
with  fraud. 

This  claim  shall  be  made  in  the  same  proceedings  in  which  said 
judgment  was  rendered  and  shall  be  heard  and  determined  according 
to  the  procedure  prescribed  for  declaratory  actions  of  greater  import. 

ART.  1168.  Any  legitimate  debtor  may  object  to  the  declaration  of 
insolvency,  whether  voluntary  or  involuntary,  and  may  request  that 
the  same  be  vacated  on  the  ground  that  universal  proceedings  are 
improper  or  that  a  declaration  of  bankruptcy  be  made  instead  and  that 
the  procedure  established  by  law  for  commercial  bankruptcies  be 
pursued. 

ART.  1169.  This  objection  must  be  made  within  three  days  following 
that  of  the  citation  of  the  opposing  creditor,  or  within  the  period  of 
time  fixed  in  the  edicts  citing  the  creditors  for  the  proceedings,  if  he 
has  not  been  personally  cited.  After  the  expiration  of  these  periods  it 
shall  not  be  admitted. 

Said  opposition  shall  be  heard  and  determined  in  a  separate  record 
according  to  the  procedure  prescribed  for  incidental  issues,  which  rec- 
ord shall  be  prepared  in  accordance  with  the  provisions  of  articles  746 
and  747  and  without  suspending  the  course  of  the  principal  proceedings. 

Art.  1170.  By  virtue  of  the  declaration  of  insolvency,  all  the  out- 
standing debts  of  the  debtor  shall  be  considered  due.  If  payment 
thereof  is  made  before  maturity,  such  debts  shall  be  discounted  accord- 
ing to  the  legal  rate  of  interest. 

SECTION  III. — Proceedings  consequent  upon  a  declaration  of  insolvency . 

ART.  1171.  The  following  proceedings  shall  be  ordered  in  the  same 
decision  in  which  the  declaration  of  insolvency  is  made: 

1.  The  attachment  and  deposit  of  all  the  property  of  the  debtor,  the 
seizure  of  his  books  and  papers,  and  the  detention  of  his  correspondence. 

2.  The  appointment  of  a  depositary  to  take  charge  of  the  preserva- 
tion and  administration  of  the  property  of  the  debtor  which  has  been 
seized. 


LAW    OF    CIVIL    PROCEDURE.  225 

3.  The  consolidation  with  the  insolvency  proceedings  of  the  execu- 
tions outstanding  in  the  same  or  in  any  other  courts,  with  the  excep- 
tion established  in  article  166. 1 

ART.  1172.  The  seizure  and  attachment  of  the  property,  books,  and 
papers  of  the  debtor  shall  be  carried  into  effect  by  citing  him  to  appear, 
if  he  has  not  absented  himself,  in  the  most  adequate  and  least  expen- 
sive manner  according  to  the  rules  established  for  intervention  in  the 
(tates  of  intestates. 
The  property  excepted  from  attachment  by  article   1-447  only  shall 
left  in  the  possession  of  the  insolvent.2 
ART.  1173.  The  following  rules  shall  be  observed  for  the  deposit  of 
the  property: 

1.  The  cash  and  public  securities  shall  be   deposited  in  the  public 
institution  provided  therefor,  as  well  as  the  jewelry,  if  admitted  by 
said  institution. 

A  certified  copy  of  the  certificate  of  deposit  shall  be  inserted  in  the 
record,  and  the  original  shall  remain  in  the  custody  of  the  depositary 
to  be  delivered  by  him  to  the  trustees. 

2.  Products  and  other  personal  poperty  and  live  stock  shall  be  deliv- 
ered  into   the  custody  of  the   depositary   according   to   the   proper 
inventory. 

3.  The  real  estate  shall  be  placed  under  the  administration  of  the 
depositary,  a  cautionary  notice  of  the  attachment  being  made  in  the 
proper  registries  of  property. 

4.  The  proper  inventory  shall  be  made  of  the  accounts  and  papers, 
with  a  statement  of  their  condition,  and  they  shall  be  preserved  in  the 
office  of  the  clerk  until  they  are  delivered  to  the  trustees,  unless  the 
judge  should  deem  it  proper  to  allow  them  to  remain  in  the  counting- 
room  or  office  in  which  they  may  be,  without  fear  of  any  abuses  being 
committed. 

In  any  case  he  shall  adopt  the  measures  which  he  may  deem  neces- 
sary to  avoid  the  commission  of  any  abuses. 

ART.  1174.  A  communication  shall  be  sent  to  the  postmaster  for  the 
detention  of  the  correspondence,  requesting  him  that  it  be  placed  at 
the  disposal  of  the  court. 

ART.  1175.  Upon  the  day  and  at  the  hour  which  may  be  fixed  for 
the  purpose,  the  debtor  shall  open  the  correspondence  in  the  presence 
of  the  judge  and  court  clerk.  The  latter  shall  retain  possession  of 

1 A  decision  against  the  consolidation  of  an  executory  action  with  universal  proceed- 
ings does  not  put  an  end  to  the  latter  nor  does  it  make  their  continuation  impos- 
sible.— Decision  of  July  7,  1883. 

2  The  law  of  civil  procedure  in  prescribing  that  the  judge  will  issue  the  orders  which 
may  be  necessary  for  the  attachment  and  deposit  of  all  the  property  of  the  debtor, 
included  implicitly  that  of  all  the  rights  of  the  insolvent,  among  which  are  included 
the  fruits  of  the  property  belonging  to  the  conjugal  community. — Decision  of  March 
. 
5190 15 


226  LAW    OF    CIVIL    PEOCEDUEE. 

that  which  may  relate  to  the  insolvency  proceedings,  delivering  the 
balance  to  the  debtor. 

If  the  latter  should  not  appear  or  should  have  absented  himself 
without  leaving  a  representative,  the  judge  shall  open  the  correspond- 
ence in  the  presence  of  the  court  clerk,  entering  a  statement  of  this 
action  in  the  record. 

AKT.  1176.  If  it  shall  appear  from  the  correspondence  that  it  is  neces- 
sary to  adopt  an  urgent  measure  for  the  security  of  the  property,  the 
judge  shall  order  the  same  to  be  taken,  informing  the  debtor  of  his 
action. 

ART.  1177.  The  appointment  of  a  depositary  administrator  of  the 
estate  of  the  insolvent  must  be  given  to  a  competent  and  responsible 
person,  whether  a  creditor  of  the  debtor  or  not. 

He  shall  not  be  required  to  furnish  a  bond,  if  the  judge  relieves 
him  therefrom,  under  his  liability. 

ART.  1178.  After  the  office  has  been  accepted,  the  oath  administered, 
and  the  bond  furnished,  if  the  judge  should  have  required  one,  the 
depositary-administrator  shall  be  placed  in  possession  thereof;  a  cer- 
tified copy  of  his  appointment  vised  by  the  judge  shall  be  given  him, 
and  all  persons  he  may  designate  shall  be  informed  of  said  appoint- 
ment in  order  that  he  may  be  recognized  as  such  administrator. 

ART.  1179.  The  depositary -administrator  shall  represent  the  estate 
of  the  insolvent  until  the  trustees  take  possession  of  their  office. 

He  shall,  in  addition,  have  the  following  powers  and  obligations: 

1.  To  administer  the  property  of  the  insolvent  and  preserve  the 
same  in  his  custody  without  impairment. 

2.  To  collect  the  indebtedness  existing  in  favor  of  the  debtor. 

3.  To  recommend  to  the  judge  the  sale  of  any  personal  property 
which  can  not  be  preserved. 

ART.  1180.  For  the  collection  of  the  indebtedness,  he  shall  first  obtain 
the  consent  of  the  court,  which  consent  shall  be  entered,  signed  by  the 
judge  and  by  the  court  clerk,  upon  the  titles  of  the  said  credits,  should 
there  be  any,  and  otherwise  it  shall  be  proven  by  means  of  a  certified 
copy  of  the  order  in  which  consent  was  granted. 

In  all  the  other  matters  referred  to  in  the  foregoing  article  the 
provisions  prescribed  for  similar  cases  in  the  administration  of  intes- 
tate estates  shall  be  observed. 

ART.  1181.  The  money  collected  by  the  administrator  of  the  estate 
of  the  insolvent  shall  be  deposited  without  delay,  subject  to  the  orders 
of  the  court,  in  the  public  institution  provided  therefor. 

The  judge,  nevertheless,  may  leave  in  the  possession  of  said  admin- 
istrator the  sum  which  he  may  consider  indispensable  to  meet  the 
expenses  of  said  estate. 

ART.  1182.  The  judge  may  make  the  depositary  a  daily  allowance 
in  proportion  to  the  value  and  circumstances  of  the  property  entrusted 


sunai  j. 

arising 


LAW    OF    CIVIL    PROCEDURE.  227 

to  his  care,  taking  into  consideration  the  fees  that  may  be  derived 
from  the  administration.  In  no  case  shall  said  allowance  exceed  50 
reales  per  day. 

In  all  cases  the  depositary-administrator  shall  be  entitled  to  collect: 

1.  One-half  per  cent  on  the  collection  of  credits. 

2.  One  per  cent  on  the  net  proceeds  from  the  sale  of  products,  per- 
sonal property,  or  live  stock  which  may  be  alienated. 

Five  per  cent  on   the  net  proceeds  of  the  administration  not 
sing  from  the  sources  mentioned  in  the  foregoing  paragraphs. 

1183.  The  depositary  shall  cease  in  the  discharge  of  his  duties 
on  the  same  day  the  trustees  take  possession  of  their  office,  to  whom 
he  shall  turn  over  the  administration  and  the  property  in  his  custody. 
Within  the  next  fifteen  days  he  shall  render  an  authenticated  account, 
hich  shall  be  approved  by  the  court  after  hearing  the  trustees  thereon. 
ART.  1184.  The  following  rules  shall  be  observed  for  the  purpose  of 
king  the  consolidation  prescribed  in  rule  3  of  article  1171 : 

1.  If  the  executory  record  is  on  file  in  the  same  clerk's  office  where 
e  insolvency  proceedings  are  pending,  the  judge  shall  order  the 
urt  clerk  that  he  consolidate  the  same  with  the  record  of  the  uni- 

ersal  proceedings,  inserting  therein  a  certified  copy  of  the  order,  and 
iting  the  execution  creditor  to  appear  in  the  proceeding  and  assert 
is  rights. 

2.  If  the  record  should  be  on  file  in  some  other  clerk's  office  of  the 
me  court,  he  shall  order  the  court  clerk  to  require  his  associates,  by 
certified  copy  of  the  order,  to  deliver  to  him  the  record  for  consoli- 
dation to  the  intestate  proceedings,  also  citing  the  execution  creditors 
for  the  purpose  above  mentioned. 

3.  In  either  case,  if  the  execution  creditor  should  object  to  the  con- 
solidation, he  shall,  within  three  days,  request  in  the  executory  action 
a  rehearing  of  the  order  relating  thereto,  and,  after  hearing  the  deposi- 
tary-administrator of  the  estate  of  the  insolvent  thereupon  within  three 
days,  for  which  purpose  the  record  shall  be  delivered  to  him,  the  judge 
shall  decide  what  he  may  deem  proper,  his  decision  being  appealable 
for  a  stay  of  proceedings  as  well  as  a  review. 

4.  If  the  execution  be  pending  in  other  courts,  the  judge  shall  trans- 
mit to  said  court  a  certified  copy  of  the  ruling  by  which  the  declara- 
tion of  insolvency  was  made  and  anything  else  which  he  may  consider 
necessary,  and  he  shall  officially  request  that  the  record  be  forwarded 
to  him  for  consolidation  with  the  universal  proceedings. 

In  such  case  the  provisions  prescribed  in  articles  175  et  seq.  shall  be 
observed;  and  if  the  judge  of  whom  the  request  is  made  should  deny 
the  request  for  consolidation,  a  separate  record  shall  be  made  of  the 
insolvency  proceedings,  which  record  shall  include  copies  of  what  may 
be  necessary  for  subsequent  proceedings. 


228  LAW    OF    CIVIL    PROCEDURE. 

ART.  1185.  The  actions  and  causes  mentioned  in  article  1002  may  also 
be  consolidated  with  these  proceedings. 

These  consolidations  shall  be  ordered  in  the  ordinary  manner,  at  the 
instance  of  the  depositary-administrator  or  of  the  trustees  in  in- 
solvency. 

ART.  1186.  As  soon  as  the  declaration  of  insolvency  is  final,  if  it 
should  be  necessary,  the  judge  shall  order  that  the  insolvent  present 
the  statement  of  his  creditors  within  three  days,  as  well  as  the  memo- 
randum prescribed  in  numbers  2  and  3  of  article  1155. 

ART.  1187.  The  judge  may  increase  this  period  for  the  length  of 
time  which  he  may  consider  indispensable  when  it  is  clearly  insufficient 
in  view  of  the  importance  and  special  circumstances  of  the  insolvency 
proceedings. 

ART.  1188.  If  the  insolvent  should  not  comply  with  the  provisions 
of  the  foregoing  article  within  the  period  which  may  be  fixed  therefor, 
or  should  not  be  able  to  comply  therewith  on  account  of  his  absence, 
the  proceedings  shall  continue,  and  in  the  classification  of  said  pro- 
ceedings such  failure  shall  be  considered  an  indication  of  culpability. 

ART.  1189.  If  the  insolvent  be  an  association  or  company  not  gov- 
erned by  the  provisions  of  the  Code  of  Commerce,  if  its  director  or 
manager  does  not  comply  with  the  provisions  of  article  1186,  the  judge 
may  appoint  an  expert  to  make  the  general  balance  and  render  a  report 
of  the  causes  which  may  have  occasioned  the  insolvency  of  said  asso- 
ciation or  company,  for  which  purpose,  the  books  and  papers  of  the 
same  shall  be  delivered  to  him.  The  judge  shall  fix  the  period  which 
he  may  deem  necessary  for  this  purpose,  which  can  not  exceed  thirty 
days. 

ART.  1190.  If  the  insolvent  should  absent  himself  from  the  place 
where  the  proceedings  are  pending  without  leaving  a  person  sufficiently 
empowered  to  represent  him  in  the  insolvency  proceedings,  he  shall 
be  called  by  means  of  edicts  in  the  manner  prescribed  in  article  269,  in 
order  that  within  nine  days  he  may  enter  an  appearance  in  the  proceed- 
ings through  a  solicitor,  and  if  he  should  not  do  so  he  shall  be  declared 
in  default,  the  provisions  prescribed  in  article  281  being  observed. 

SECTION  IV. — Citation  of  creditors  cmd  appointment  of  trustees. 

ART.  1191.  Without  prejudice  to  continuing  the  execution  of  the 
proceedings  prescribed  in  the  foregoing  section,  as  soon  as  the  declara- 
tion of  insolvency  becomes  final,  the  judge  shall  order  it  published  by 
means  of  edicts,  admonishing  all  persons  not  to  make  any  payments 
to  the  insolvent,  under  penalty  of  their  being  considered  illegal,  and 
that  all  payments  be  made  to  the  depositary,  or  to  the  trustees  as  soon 
as  they  are  appointed. 

ART.  1192.  At  the  same  time  he  shall  order  that  the  creditors  be 
cited  by  the  same  edicts  to  appear  in  the  proceedings  and  present 


LAW    OF    CIVIL    PROCEDURE.  229 


the  evidence  of  their  claims,  and  shall  order  a  meeting  called  for  the 
appointment  of  trustees  upon  the  day,  hour,  and  at  the  place  which  the 
judge  himself  may  designate. 

ART.  1193.  The  period  between  the  call  and  the  holding  of  the 
meeting  can  not  be  less  than  twenty  nor  more  than  forty  days  to  be 
counted  from  the  date  of  the  publication  of  the  edicts. 
ART.  1194.  The  judge  shall  fix  the  day  for  the  holding  of  the  meet- 
ig,  taking  into  consideration  the  number  and  residence  of  the  credi- 
ts, so  that  all  those  who  may  be  in  the  respective  territory  of  each 
>f  the  islands  of  Cuba  and  Porto  Rico  may  have  time  to  attend  the 
leeting  or  to  give  a  power  of  attorney  to  a  person  to  represent  them. 
ART.  1195.  The  edicts  referred  to  in  articles  1191  et  seq.  shall  be 
iblished  and  posted  at  the  customary  places  where  the  proceedings 
ire   being   held  and  at  the  domicile  of  the  insolvent,  and  shall  be 
;rted  in  the  official  bulletins  of  the  provinces,  where  there  are  any, 
id  in  the  Gaceta  of  the  General  Government,  as  well  as  in  that  of 
[adrid  whenever  the  judge  considers  it  advisable,  in  view  of  the 
iportance  and  circumstances  of  the  insolvency  proceedings. 
ART.  1196.  Without  prejudice  to  the  calls  by  edicts,  all  the  creditors 
hose  domiciles  may  be  known  and  who  are  included  in  the  statement 
>resented  by  the  insolvent,  shall  be  personally  cited  to  appear,  the 
letters  mandatory  and  rogatory  which  may  be  necessary  for  the  pur- 
pose being  issued. 

ART.  1197.  The  insolvent  shall  also  be  cited  by  writ  for  the  first 
meeting  and  for  the  other  meetings  which  may  be  held  during  the 
proceedings,  in  order  that  he  may  attend  the  same  in  person  or  through, 
an  empowered  representative  should  he  so  desire. 

ART.  1198.  Appearance  by  the  creditors  with  the  proof  of  their 
claims  shall  be  made  personally  before  the  court  clerk  or  in  writing, 
as  the  person  interested  may  elect. 

ART.  1199.  If  the  appearance  should  be  personal,  the  proper  entry 
to  that  effect  shall  be  made  in  the  redbrd,  stating  therein  the  name, 
surnames,  status,  profession,  and  domicile  of  the  creditor,  the  desig- 
nation of  the  house  where  he  resides,  the  nature  of  the  document,  its 
date,  and,  in  a  proper  case,  the  notary  who  may  have  authenticated  it, 
and  the  net  amount  of  the  credit  claimed,  the  creditor  further  stating 
whether  he  holds  any  pledge  or  other  guaranty  in  his  own  possession 
or  in  that  of  another  person.  This  statement  shall  be  signed  by  the 
creditor,  and  if  he  should  not  be  able  to  do  so,  by  a  witness  at  his 
request,  and  by  the  court  clerk. 

ART.  1200.  If  the  appearance  is  made  in  writing,  the  statements 
aforementioned  shall  also  be  included  therein,  and  it  shall  be  drafted 
on  the  proper  stamped  paper  and  signed  by  the  person  interested,  or 
by  another  person  at  his  request  if  he  were  not  able  to  do  so. 

If  the  appearance  is  made  through  a  duly  empowered  representative, 


230  LAW    OF    CIVIL    PROCEDURE, 

the  power  of  attorne}T  shall  be  attached  to  the  record  with  the  proofs 
of  the  claims. 

ART.  1201.  The  court  clerk  shall  issue  a  receipt  for  the  titles  of 
credits  which  may  be  presented,  even  though  not  requested  by  the 
person  interested,  entering  the  same  in  the  appearance  itself,  or  in  the 
memorandum  of  the  presentation  of  the  instrument. 

ART.  1202.  A  separate  record  shall  be  made,  with  the  evidence  of  the 
credits,  the  appearances,  or  the  written  statements  of  the  presentation, 
to  which  said  documents  shall  be  added  in  the  order  in  which  they  are 
presented,  the  creditors  being  numbered  in  the  same  order. 

ART.  1203.  In  extraordinary  cases  in  which,  by  reason  of  there  being 
a  very  large  number  of  creditors,  or  on  account  of  the  character  of 
the  credits,  it  may  be  reasonably  presumed  that  it  will  not  be  possible 
to  carry  out  the  provisions  contained  in  the  foregoing  articles  within 
the  period  of  forty  days,  fixed  in  article  1193  for  holding  the  meeting, 
the  judge  may  extend  this  period  for  the  time  he  may  consider 
necessary. 

ART.  1204.  Forty-eight  hours  before  the  time  fixed  for  the  meeting, 
the  time  for  the  appearance  of  creditors  for  the  purpose  of  attending 
the  same  and  for  electing  trustees  shall  be  closed. 

Those  who  may  appear  thereafter  must  do  so  in  writing,  and  they 
shall  be  admitted  for  the  subsequent  effects  of  the  proceedings. 

ART.  1205.  The  court  clerk  shall,  as  the  creditors  appear  with  the 
evidence  of  their  credits,  prepare  an  individual  statement  of  them 
which  must  be  completed  for  use  at  the  meeting. 

ART.  1206.  Said  statement  shall  include  the  names  and  surnames  of 
the  creditors  and  the  amounts  claimed  by  each,  with  the  ordinal 
number  of  their  presentation  and  the  folio  of  the  record  at  which  the 
respective  documents  may  be  found,  and  a  statement  as  to  whether 
said  claim  is  included  in  the  statement  presented  by  the  insolvent. 

ART.  1207.  The  provisions  of  article  1135  shall  be  applicable  to  the 
meeting  held  for  the  appointtnent  of  trustees  and  to  other  meetings 
held  during  the  course  of  the  proceedings. 

ART.  1208.  Three  trustees  shall  be  appointed  for  these  proceedings, 
which  number  can  not  be  increased  nor  reduced. 

An  exception  may  be  made,  however,  if  all  the  creditors  who  attend 
the  meeting  unanimously  agree  to  appoint  one  or  two  trustees. 

ART.  1209.  With  the  exception  of  the  last-named  case,  the  election 
of  the  three  trustees  shall  be  had  at  two  ballots  by  call  of  names  of  the 
creditors  present  at  the  meeting,  whatever  be  their  number  and 
the  liabilities  which  they  represent. 

ART.  1210.  The  election  of  the  first  and  second  trustee  shall  be  had 
at  one  ballot;  the  two  receiving  a  plurality  vote  of  the  amount  of  the 
capital  or  liabilities  represented,  whatever  be  the  number  of  creditors 
representing  the  same,  shall  be  declared  elected. 


LAW    OF    CIVIL    PROCEDURE.  231 

If  more  than  two  persons  receive  a  vote  representing  an  equal  pro- 
portion of  the  liabilities,  the  one  receiving  the  larger  number  of  votes 
shall  be  given  the  preference,  and  if  the  number  of  votes  should  also 
be  equal,  then  the  selection  shall  be  made  by  lot  from  among  such 
persons. 

ART.  1211.  In  the  election  of  the  third  trustee  the  creditors  whose 
claims  were  included  in  the  majority  vote  of  the  first  two  trustees  shall 
not  take  part.  The  second  election  shall  be  held  by  the  creditors  vot- 
ing with  the  minority  only,  and  the  person  obtaining  the  largest  num- 
ber of  votes  shall  be  elected  trustee. 

If  there  should  be  two  or  more  receiving  the  same  number  of  votes, 
the  one  receiving  a  vote  representing  the  greater  amount  of  the  claims 
shall  be  the  third  trustee;  and  if  the  amount  of  the  claims  should  also 
be  equal,  said  third  trustee  shall  be  selected  by  lot  from  among  those 
receiving  such  equality  of  votes  and  claims. 

ART.  121 2.  If  by  reason  of  death  or  any  other  cause,  it  should  become 
necessary  to  replace  one  of  the  trustees,  the  election  of  either  of  the 
first  two  shall  be  had  by  the  relative  majority  of  the  claims,  and  of  the 
third  trustee  by  the  relative  majority  of  the  votes  of  the  creditors 
attending  the  meeting,  in  accordance  with  the  provisions  contained  in 
the  foregoing  articles. 

ART.  1213.  Only  male  creditors  can  be  elected  trustees  who  are  over 
twenty-five  years  of  age,  present  at  the  meeting,  who  are  such  in  their 
own  right  and  not  representing  another  person,  who  do  not  have  any 
known  or  pretended  preferred  claim  and  who  reside  at  the  place  where 
the  proceedings  are  being  held. 

Only  in  the  absence  of  creditors  in  their  own  right  can  the  repre- 
sentatives of  others  be  elected. 

If  there  should  be  only  creditors  having  known  or  pretended  pre- 
ferred claims,  and  representatives  of  common  creditors,  the  election 
shall  be  made  from  among  the  latter. 

ART.  1214.  The  meeting  shall  be  held  on  the  day  and  at  the  hour 
fixed  therefor,  under  the  chairmanship  of  the  judge  and  with  the 
attendance  of  the  court  clerk. 

After  a  statement  of  the  creditors  attending  has  been  made,  and  if 
it  agrees  with  the  one  made  by  the  court  clerk  in  accordance  with  the 
provisions  of  article  1205,  the  judge  shall  declare  the  meeting  open  for 
business,  whatever  be  the  number  of  creditors  present  thereat. 

The  session  shall  begin  with  the  reading  of  the  provisions  of  this 
law  relating  to  the  appointment  of  trustees;  then  the  court  clerk  shall 
inform  the  meeting  of  the  facts  upon  which  the  declaration  of  insol- 
vency was  made,  of  the  result  of  all  measures  taken  for  the  custody  of 
the  property,  books,  and  papers,  and  of  any  other  matters  which  may 
have  taken  place. 

After  these  formalities  have  been  complied  with,  the  election  of 


232  LAW    OF    CIVIL    PROCEDURE. 

trustees  shall  be  continued  in  the  manner  prescribed  in  articles  1208 
et  seq. 

The  proper  minutes  of  the  result  of  the  meeting,  with  a  detailed 
statement  of  the  voting  had  by  call  of  names,  shall  be  drafted,  and,  in 
a  proper  case,  of  the  protests  which  may^  have  been  made,  which  min- 
utes, after  being  read  and  approved,  shall  be  signed  by  the  judge,  the 
creditors  present,  the  debtor,  if  he  has  attended,  and  the  court  clerk. 

ART.  1215.  After  the  trustees  have  been  elected,  they  shall  be  given 
possession  of  their  offices,  after  they  have  accepted  the  same  and  after 
they  have  taken  an  oath  that  they  will  perform  said  duties  faithfully 
and  well.  Their  appointment  shall  be  communicated  to  whom  it  may 
be  necessary. 

Their  appointment  shall  furthermore  be  published  by  edicts,  which 
shall  be  posted  in  the  customary  places  and  inserted  in  the  official 
newspapers  in  which  the  call  for  the  meeting  may  have  been  published. 

In  these  edicts  it  shall  be  required  that  all  persons  deliver  to  the 
trustees  all  property  belonging  to  the  insolvent. 

ART.  1216.  The  following  are  the  duties  of  the  trustees: 

1.  To  represent  the  estate  of  the  insolvent  in  and  out  of  court,  and 
defend  its  rights,  and  exercise  the  actions,  and  plead  such  exceptions 
as  may  be  proper. 

2.  To  administer  the  property  of  the  estate  of  the  insolvent,  taking 
charge  thereof  and  of  the  books  and  papers. 

3.  To  recover  and  collect  all  amounts,  rents,  and  annuities  belonging 
to  the  estate  of  the  insolvent,  and  pay  the  expenses  thereof  which  may 
be  indispensable  for  the  defense  of  the  interests  and  the  preservation 
and  benefit  of  the  property  of  said  estate. 

4.  To  procure  the  alienation  and  realization  of  all  property,  rights, 
and  actions  of  the  estate  of  the  insolvent  under  the  most  advantageous 
conditions  and  with  legal  formalities. 

5.  To  examine  the  documentary  proof  of  credits  and  propose  to  the 
meeting  of  creditors  their  acknowledgment  and  classification. 

6.  To  take  the  steps  necessary  to  call  and  hold  the  meetings  of  cred- 
itors, in  the  cases  and  for  the  purposes  which  they  may  consider  neces- 
sary, in  addition  to  the  meetings  expressly  prescribed  in  this  law.1 

ART.  1217.  The  trustees  shall  collectively  be  entitled  to  the  follow- 
ing remuneration,  which  they  shall  divide  among  themselves  in  equal 
parts,  should  they  not  have  made  any  agreement  to  the  contrary: 

One-half  per  cent  of  the  cash  value  of  all  public  securities  sold. 

Two  per  cent  of  the  net  amount  received  at  the  sale  of  jewelry,  per- 
sonal property,  live  stock,  or  crops  which  are  not  the  products  of 
their  administration. 

1  The  trustees  may  institute  the  same  actions  which  it  was  the  privilege  of  the 
insolvent  to  bring  against  persons  against  whom  he  had  claims  (Decision  of  December 
14, 1861],  and  they  represent  him  as  well  as  the  creditors. — Decisions  of  June  17- 1887, 
and  September  30,  1886. 


: 

s;i 

: 


LAW    OF    CIVIL    PROCEDURE.  233 

One  per  cent  of  the  net  amount  received  from  the  sale  of  real  prop- 
erty and  of  the  amount  collected  from  the  credits  or  claims  belonging 
to  the  estate. 

Five  per  cent  of  the  net  products  of  the  administration  which  are 
ot  derived  from  the  sources  mentioned  in  the  foregoing  paragraphs. 

If  in  the  performance  of  their  duties  traveling  should  become  neces- 
sary, the  costs  thereof  shall  be  allowed  them  by  an  order  of  the  judge 
nd  a  mandate  which  shall  be  issued  for  the  purpose. 

AKT.  1218.  The  election  of  all  or  of  any  of  the  trustees  may  be 
impugned  by  the  debtor  or  by  any  of  the  creditors  appearing  in  the 
proceedings,  who  may  not  have  attended  the  meeting,  or  who  should 
have  dissented  from  the  majority  and  protested  against  the  election  at 
the  time  thereof. 

In  order  that  the  protest  may  be  admitted  it  must  be  presented 
within  three  days  after  the  holding  of  the  meeting,  if  the  debtor  or 
the  creditor  making  the  same  should  have  been  present  thereat,  and 
otherwise  within  a  similar  period,  counted  from  the  date  of  the  publica- 
tion of  the  appointment  of  the  trustees.1 

ART.  1219.  The  only  causes  for  objections  admissible  shall  be  the 
following: 

1.  A  legal  impediment  which  prevents  the  persons  elected  from  dis- 
charging the  duties  of  the  office. 

2.  A  violation  of  the  forms  prescribed  for  calling  and  holding  the 
meeting  and  the  deliberations  thereof. 

3.  A  lack  of  personal  or  representative  capacity  in  any  of  those  who 
may  have  attended  the  meeting  and  voted  with  the  majority,  provided 
that  by  excluding  their  vote  there  would  not  have  been  a  majority  of 
votes  or  of  claims  represented. 

ART.  1220.  The  objection  shall  be  heard  and  determined  in  a  sepa- 
rate record,  to  which  the  trustee  objected  to  shall  be  a  party,  at  the 
cost  of  the  objecting  party,  and  the  record  shall  be  composed  of  the 
written  objection  presented,  a  certified  copy  of  the  minutes  of  the 
meeting  and  other  details  which  the  judge  may  designate. 

ART.  1221.  After  the  separate  record  has  been  formed,  it  shall  be 
delivered  to  the  person  who  objected  in  order  that  he  may,  within  the 
period  of  four  days,  formulate  his  objection,  which  shall  be  heard  and 
determined  in  the  manner  prescribed  for  incidental  issues. 

The  decision  rendered  thereupon  may  be  appealed  from  for  review 
and  for  a  stay  of  proceedings.2 

ART.  1222.  The  insolvency  proceedings  shall  not  be  suspended  by 
reason  of  the  objection  made  to  the  election  of  trustees. 

1  The  absence  of  a  protest  does  not  affect  the  personal  capacity  of  the  debtor. — 
Decision  of  December  3,  1885. 

2  A  decision  upon  this  appeal  is  not  definite  for  the  purposes  of  an  annulment  of 

judgment. — Decision  of  March  22,  1889. 


234  LAW    OF    CIVIL    PROCEDURE. 

Neither  shall  said  objection  prevent  the  persons  elected  from  enter- 
ing upon  the  discharge  of  their  duties,  without  prejudice  to  the  result 
of  the  objection. 

ART.  1223.  Any  trustee  whose  claim  has  not  been  acknowledged  in 
whole  or  in  part  by  the  creditors'  meeting,  or  by  the  judge,  in  a  proper 
case,  or  who  institutes  any  action  against  the  estate  of  the  insolvent, 
or  should  impugn  any  of  the  resolutions  of  the  meetings  of  creditors, 
shall  de  jure  be  divested  of  his  office  and  be  replaced  in  the  manner 
prescribed  in  article  1212. 

ART.  1224.  If  for  the  reasons  mentioned  in  the  foregoing  article  or 
by  reason  of  death  or  otherwise,  it  should  be  necessary  to  elect  a 
successor  to  any  of  the  trustees,  such  election  shall  take  place  at  the 
first  meeting  which  may  be  held,  whether  it  be  for  the  acknowledge- 
ment or  the  classification  of  the  credits. 

If  the  occurrence  should  take  place  after  these  meetings  have  been 
held,  and  no  other  meeting  has  been  called,  the  judge  shall  order  that 
a  meeting  be  called  for  the  purpose  of  electing  a  successor  to  the 
trustee  in  question. 

In  the  meantime  the  trustee  or  trustees  remaining  in  the  discharge 
of  their  duties  shall  be  the  legal  representatives  of  the  estate  of  the 
insolvent. 

ART.  1225.  After  the  trustees  have  been  placed  in  possession  of 
their  offices,  the  proceedings  shall  be  divided  into  three  separate 
records. 

The  first,  which  shall  contain  all  proceedings  already  had,  shall  be 
called  "Administration  of  the  estate  of  the  insolvent."  The  hearing 
and  determination  of  all  matters  appertaining  to  said  administration 
shall  be  had  and  entered  therein,  without  prejudice  to  forming  such 
separate  branches  which  may  be  necessary  for  the  purpose  of  avoiding 
confusion  in  the  proceedings. 

The  second  shall  be  for  the  acknowledgment  and  classification  of 
the  credits. 

The  third  shall  be  for  the  classification  of  the  insolvency  proceedings. 

SECTION  V. — First  record. — Administration  of  the  estate  of  the 

insolvent. 

ART.  1226.  After  the  appointment  of  the  trustees  has  been  published, 
the  property,  effects,  books,  and  papers  of  the  insolvent  shall  be  turned 
over  to  them  by  inventory. 

The  money  shall  remain  on  deposit  at  the  disposal  of  the  judge  in 
the  establishment  provided  therefor;  the  certificate  or  certificates  of 
such  deposit  shall  be  delivered  to  the  trustees,  who  shall  give  a  receipt 
therefor,  which  shall  be  attached  to  this  record. 

ART.  1227.  The  trustees  shall  be  bound,  under  their  liability,  to 


LAW    OF    CIVIL    PROCEDURE.  235 

carefully  administer  and  preserve  the  property  of  the  estate  of  the 
insolvent,  and  to  see  that  it  gives  the  proper  rents,  products,  or  profits 
until  sold. 

For  this  purpose  the  provisions  contained  in  articles  1015  to  1021, 
relating  to  the  administration  of  intestate  estates,  shall  be  applicable  to 
the  administration  of  estates  of  insolvents  without  a  hearing  of  the 
insolvent  being  necessary.1 

ART.  1228.  The  judge  shall  leave  in  the  hands  of  the  trustees  the 
sum  which  he  may  consider  indispensable  to  meet  the  ordinary  expenses 
of  the  estate  of  the  insolvent,  ordering  that  it  be  withdrawn  from 
deposit,  if  necessary. 

As  such  expenses  shall  be  considered  all  those  which  are  required 
for  the  custody  and  preservation  of  the  property,  the  payment  of  taxes 
and  charges  to  which  the  real  property  may  be  subject,  and  the 
costs  of  all  actions  and  all  ordinary  matters  pertaining  to  the  estate.2 

ART.  1229.  The  trustees  shall  present  a  statement  or  account  of 
their  administration  on  the  last* day  of  every  month,  unless  the  judge, 
taking  into  consideration  the  receipts  of  the  estate,  should  deem  it 
proper  to  extend  this  period. 

If  it  should  appear  that  there  is  money  in  the  hands  of  the  trustees 
which  is  not  necessary  for  the  ordinary  expenses  of  the  estate,  and 
which  has  not  been  deposited  by  the  trustees  in  the  proper  public 
establishment,  the  judge  shall,  under  his  liability,  compel  them  to 
do  so. 

ART.  1230.  A  separate  branch  of  the  first  record  shall  be  formed 
out  of  the  statements  or  accounts  of  the  administration,  which  record, 
together  with  said  separate  branch  and  any  others  which  may  be 
formed,  shall  remain  on  file  in  the  office  of  the  clerk,  subject  to  the 
examination  of  the  creditors  and  debtor.  No  charges  shall  be  made 
for  said  examination. 

ART.  1231.  The  judge,  on  his  own  motion  or  at  the  instance  of  the 
creditors  or  of  the  insolvent,  may  correct  any  abuse  which  he  may  notice 
in  the  administration  of  the  estate,  taking  the  measures  which  he  may 
consider  necessary,  including  the  suspension  of  the  trustee  or  trustees 
who  may  have  committed  it. 

In  the  latter  case  the  judge,  without  allowing  any  remedy  against 
his  order,  shall  immediately  call  a  meeting  of  the  creditors  in  order 
that  they  may  determine  what  they  may  consider  most  advisable. 

If  the  decision  of  the  meeting  should  confirm  the  suspension  of  the 

1  In  order  to  preserve  and  administer  the  property  of  the  insolvent,  any  lessee  or 
renter  of  property,  including  the  insolvent  himself,  is  subject  to  eviction  therefrom. — 
D«'ision  of  October  30,  1885. 

2  This  shows  exactly  in  what  order  the  expenses  and  costs  are  to  be  paid,  which 
was  more  fully  sanctioned  by  .article  592  of  the  law  of  1855,  which  concords  with 
article  1266  of  the  law  in  force. — Decision  of  May  11,  1866. 


236  LAW    OF    CIVIL    PROCEDURE. 

trustee,  the  election  of  his  successor  shall  be  proceeded  with  at  the 
same  meeting  in  the  manner  prescribed  in  article  1212. 

Otherwise  the  suspension  ordered  by  the  judge  shall  be  considered 
vacated. 

The  provisions  contained  in  this  article  are  understood  without 
prejudice  to  the  institution  of  criminal  proceedings  when  proper. 

AET.  1232.  After  the  trustees  have  been  given  possession  of  the 
property  and  effects  of  the  insolvent,  they  shall  proceed  with  the  sale 
of  the  same,  in  the  first  separate  record,  or  in  branches  thereof,  only 
excepting — 

1.  Property  with  regard  to  which  there  is  an  action  pending  as  to  its 
ownership,  instituted  by  a  third  person,  in  which  case  the  sale  shall  be 
delayed  until  a  final  judgment  is  rendered  therein. 

2.  The  real  propert}^  which,  on  account  of  being  specially  mort- 
gaged, is  seized  under  an  execution,  which  has  not  been  consolidated 
with  the  bankruptcy  proceedings. 

In  such  case  a  communication  shall  be  sent  to  the  judge  taking  cog- 
nizance of  the  executory  action  requesting  that  he  place  the  surplus 
remaining,  after  payment  of  the  mortgage  creditor,  at  the  disposal  of 
the  estate  of  the  insolvent. 

ART.  1233.  When  the  trustees  should  believe  that  it  is  for  the  best 
interests  of  the  estate  of  the  insolvent  to  suspend  or  postpone  the  sale 
of  some  property,  they  shall  so  inform  the  judge,  who  shall  agree  to 
such  suspension  if  he  deems  it  proper,  but  a  report  of  the  causes  or 
reasons  for  the  suspension  shall  be  presented  at  the  first  meeting  of  the 
creditors,  in  order  that  a  majority  of  said  creditors,  fixed  according 
to  rule  6  of  article  1137,  may  decide  what  they  may  consider  most 
advisable. 

ART.  1234.  The  sale  shall  take  place  with  the  formalities  prescribed 
for  the  sale  of  each  class  of  property  by  judicial  compulsion  in  an 
executory  action. 

ART.  1235.  The  appraisement  shall  be  made  by  an  expert  selected 
by  the  judge  in  the  manner  prescribed  in  article  615.  Articles  616  et 
seq.  shall  also  be  applicable  to  this  case. 

Upon  the  recommendation  of  the  trustees  the  judge  may  order  that 
three  experts  be  selected  in  the  same  manner  when  he  believes  that  it 
is  required  in  view  of  the  value  of  the  property. 

The  representatives  of  the  trustees  and  of  the  insolvent  shall  be 
cited  to  appear  at  the  day  and  hour  fixed  for  selecting  the  experts  by 
lot.  If  they  appear  and  agree  upon  the  appointment  of  one  or  more 
experts,  those  they  designate  shall  be  considered  as  appointed.  Other- 
wise the  election  shall  take  place  in  accordance  with  the  provisions  of 
said  article  615. 

ART.  1236.  Should  no  admissible  bid  be  received,  a  second  auction 
shall  be  announced,  with  a  reduction  of  25  per  cent  of  the  appraise- 

raent> 


LAW    OF    CIVIL    PROCEDURE.  237 

If  there  should  be  no  bidder  at  the  second  sale,  a  meeting  of  the 
creditors  shall  be  called  in  order  that  they  may  agree  as  to  the  manner 
in  which  the  unsold  property  shall  be  distributed,  unless  they  prefer 
a  third  auction  thereof  without  subjecting  said  sale  to  a  minimum  bid. 

In  case  they  prefer  the  distribution,  it  shall  be  based  upon  two- 
thirds  of  the  amount  which  served  as  a  minimum  bid  at  the  second 
sale. 

ART.  1237.  Credits,  securities,  and  shares  of  stock  may  also  be  sold  at 
public  auction  when,  being  subjects  of  litigation,  or  their  sale  difficult, 
or  when  they  will  not  mature  for  a  long  period  of  time,  or  when  litiga- 
tion becomes  necessary  to  recover  them,  the  time  for  the  conclusion 
of  the  insolvency  proceedings  would  be  indefinitely  prolonged. 

In  such  cases,  upon  the  recommendation  of  the  trustees,  the  judge 
shall  make  such  order  as  he  may  consider  most  advisable  to  determine 
the  amount  to  be  designated  as  the  minimum  bid  at  such  sale. 

ART.  1238.  After  the  sale  at  auction  has  been  approved,  the  trustees 
shall  execute  the  proper  instrument  in  favor  of  the  buyer,  as  soon  as 
he  has  paid  the  amount  of  the  bid,  which  sum  shall  be  placed  bn 
deposit  at  the  disposal  of  the  court  in  the  manner  hereinbefore  pre- 
scribed. 

ART.  1239.  The  trustees  may  compromise  causes  pending  or  which 
may  be  instituted  by  or  against  the  estate  of  the  insolvent,  and  any 
other  questions  which  may  be  subject  to  litigation  in  which  said  estate 
may  be  interested,  provided  that  they  are  authorized  to  compromise 
by  the  meeting  of  creditors. 

Should  they  not  be  so  authorized,  they  shall  submit  the  agreement 
for  compromise  to  the  first  meeting  thereafter  held  or  which  may  be 
called  for  the  purpose,  which  shall  decide  according  to  a  majority 
computed  as  prescribed  by  rule  6  of  article  1137. 

In  either  case  the  trustees  shall  submit  the  compromise  to  the  court 
for  approval  in  a  separate  record,  without  which  requisite  it  shall  not 
be  valid.  The  judge  shall  hear  the  insolvent  during  a  period  of  six 
days,  and  shall  decide  what  he  may  deem  proper  without  further 
proceedings. 

The  ruling  approving  or  disapproving  the  compromise  may  be 
appealed  from  for  a  review  and  for  a  stay  of  proceedings. 

ART.  1240.  After  all  the  credits  have  been  paid,  or  such  part  thereof 
which  the  property  of  the  estate  is  sufficient  to  meet,  the  trustees  shall 
*  render  a  general  authenticated  account,  which  shall  be  attached  to  the 
separate  branch  of  the  record  of  accounts,  and  it  shall  remain  in  the 
office  of  the  clerk  for  a  period  of  fifteen  days  subject  to  the  examina- 
tion of  the  debtor  and  of  such  creditors  who  may  not  have  been  fully 
paid. 

ART.  1241.  If  fifteen  days  should  elapse  without  any  objection 
being  made,  the  judge  shall  approve  the  account  and  shall  order  that 
the  trustees  be  given  the  proper  release. 


238  LAW    OF    CIVIL    PROCEDURE. 

ART.  12454.  All  objections  made  to  the  account  shall  be  heard  and 
determined  with  the  trustees  in  the  ordinary  action  which  may  be 
proper  according  to  the  amount  involved. 

The  person  instituting  such  action  shall  litigate  at  his  own  expense 
and  under  his  exclusive  liability,  without  prejudice  to  an  adjudication 
upon  costs  which  may  be  imposed  upon  the  trustees,  if  the  action 
should  be  decided  against  them. 

Persons  making  common  cause  shall  litigate  jointly  and  be  repre- 
sented by  the  same  counsel. 

ART.  1243.  If  the  trustees  cease  in  the  discharge  of  their  duties 
before  the  conclusion  of  the  insolvency  proceedings,  they  shall  in  the 
same  manner  render  their  general  account  within  a  period  of  fifteen 
days,  which  shall  be  submitted  for  the  examination  and  approval  of 
the  first  meeting  of  creditors  which  may  be  held,  after  a  report  thereon 
by  the  new  trustees. 

If  no  meeting  is  held,  the  approval  of  said  accounts  shall  appertain 
to  the  judge  with  a  hearing  of  the  new  trustees;  and  if  there  should 
be 'any  objection  thereto,  it  shall  be  heard  and  determined  according 
to  the  proceedings  established  for  incidental  issues,  and  the  creditors 
requesting  the  same  may  be  parties  thereto. 

The  ruling  or  decision  rendered  in  these  issues  may  be  appealed 
from  for  a  review  and  for  a  stay  of  proceedings. 

ART.  1244.  After  the  account  of  the  trustees  has  been  approved, 
delivery  shall  be  made  to  the  debtor  of  his  books  and  papers,  and  of 
the  property  remaining,  if  all  the  credits  and  the  costs  incurred  in  the 
insolvency  proceedings  have  been  paid. 

Otherwise,  the  books  and  papers  shall  be  kept  in  the  office  of  the 
clerk,  for  subsequent  purposes,  attached  to  the  record. 

ART.  1245.  Notice  of  the  definite  result  of  the  insolvency  proceed- 
ings shall  be  personally  given  by  writ  (cedula)  to  such  creditors  as 
have  a  known  domicile  and  who  have  not  recovered  their  full  credits, 
and  in  any  case  it  shall  be  published  by  means  of  edicts  which  shall  be 
inserted  in  the  newspapers  in  which  the  declaration  of  insolvency 
may  have  been  published. 

ART.  1246.  The  ruling  which  orders  the  publication  of  the  definite 
result  of  the  insolvency  proceedings  shall  also  declare  the  discharge 
of  the  insolvent,  without  the  necessity  of  his  application  therefor  nor 
a  hearing  of  the  trustees. 

This  discharge  shall  be  understood  without  prejudice  to  the  rights 
of  the  creditors  whose  credits  have  not  been  paid  in  full,  and  to  what 
may  have  been  decided  with  regard  to  the  culpability  of  the  insolvent. 


LAW    OF    CIVIL    PEOCEDURE.  239 

SECTION  VI. — Second  separate  record;  acknowledgment,  classification, 
and  payment  of  credit*. 

ART.  1247.  After  the  trustees  have  taken  possession  of  the  property, 
books,  and  papers  of  the  insolvent,  the  second  separate  record  shall  be 
formed  for  the  acknowledgment,  classification,  and  payment  of  the 
credits. 

This  record  shall  be  formed  with  a  certified  literal  copy  of  the  state- 
ment or  report  of  the  debts  presented  by  the  debtor  and  of  the  sep- 
arate record  which  may  have  been  formed  in  accordance  with  the 
provisions  of  article  1202  with  the  written  evidence  of  the  credits  pre- 
sented by  the  creditors. 

§  1.  Acknowledgment  of  credits. 

ART. ,  1248.  After  the  second  separate  record  has  been  formed,  it 
shall  be  delivered  to  the  trustees  in  order  that,  within  the  period  which 
the  judge  may  fix,  in  view  of  the  circumstances  of  the  insolvency  pro- 
ceedings, but  not  to  exceed  thirty  days,  and  after  examining  the  writ- 
ten evidence  presented  and  the  books  and  papers  of  the  debtor,  they 
may  make  an  examination  and  liquidation  of  the  credits,  rendering 
their  report  upon  the  investigation  of  each. 

ART.  1249.  From  the  result  of  said  examination  and  for  the  purpose 
of  rendering  an  account  at  the  meeting  of  creditors,  the  trustees  shall 
make  three  statements  which  shall  contain,  respectively— 

1.  All  the  credits  claimed  in  the  order  in  which  they  may  have  been 
presented. 

2.  Those  which,  in  their  opinion,  should  be  acknowledged. 

3.  Those  which  should  not  be  acknowledged. 

All  credits  which  may  have  been  claimed  to  the  date  of  the  state- 
ments shall  be  included  therein. 

ART.  1250.  The  judge  shall,  ex  officio,  and  if  it  should  be  necessary, 
compel  the  trustees,  by  imposing  fines  or  other  punishments,  to  make 
the  examination  of  the  credits  and  present  the  statements  within  the 
period  he  may  have  fixed. 

ART.  1251.  As  soon  as  the  trustees  present  the  aforementioned  state- 
ments, the  judge  shall  order  a  meeting  of  the  creditors  to  be  called  for 
the  acknowledgment  of  the  credits,  fixing  the  day,  hour,  and  place 
where  it  is  to  be  held. 

For  this  meeting  shall  be  cited,  either  in  person  or  through  their 
representatives,  by  a  writ  which  shall  be  left  in  their  respective  domi- 
ciles, the  creditors  who  have,  or  who  have  stated  they  have,  a  domicile 
at  the  place  where  the  proceedings  are  being  held.  The  others  shall 
be  cited  by  edicts  in  the  manner  prescribed  in  article  1195. 

ART.  1252.  A  period  of  from  fifteen  to  thirty  days  must  elapse 
between  the  call  for  and  the  holding  of  the  meeting,  during  which 


240  LAW    OF    CIVIL    PROCEDURE. 

period  the  creditors  and  the  debtor  may  examine  the  report  of  the 
trustees  and  the  written  evidence  of  the  credits,  for  which  purpose 
they  shall  be  kept  in  the  clerk's  office. 

ART.  1253.  After  the  meeting,  presided  over  by  the  judge,  assisted 
by  the  clerk,  has  been  called  to  order,  the  articles  of  this  law  relating 
to  the  acknowledgment  of  credits  shall  be  read,  as  well  as  those  which 
refer  to  the  manner  of  objecting  to  the  resolutions  adopted  thereon, 
and  each  entry  of  the  statements  referred  to  in  article  1249  shall  be 
discussed  separately. 

A  separate  vote  must  be  taken  upon  each  of  the  entries,  the  credits 
being  rejected  or  acknowledged  by  unanimity,  or  otherwise  by  a 
majority  vote,  which  is  to  be  computed  in  the  manner  prescribed  in 
rule  6  of  article  1137. 

The  minutes  of  this  meeting,  which  shall  include,  in  a  proper  case, 
the  protests  of  those  who  may  have  dissented  from  the  majority,  shall 
be  signed  by  all  the  creditors  present,  and  by  the  debtor  or  his  repre- 
sentative, if  present,  and  by  the  judge  and  court  clerk.1 

ART.  1254.  No  credit  which  has  been  the  subject  of  an  order  of  sale 
made  by  a  final  judgment  rendered  in  an  executory  action  consolidated 
with  the  insolvency  proceedings,  can  be  discussed  at  said  meeting. 

Such  credits  shall  be  considered  as  acknowledged,  but  without  chang- 
ing the  character  thereof  for  the  purposes  of  their  classification,  and 
without  prejudice  to  the  right  of  the  trustees  to  impugn  the  same  in 
the  declaratory  action  which  may  be  proper  according  to  the  amount 
involved. 

ART.  1255.  If  there  should  not  be  a  majority  of  votes  and  amounts, 
the  judge,  upon  the  conclusion  of  the  meeting,  shall  have  the  record 
brought  before  him  and,  without  further  proceedings,  shall  determine 
what  he  may  consider  legal  with  regard  to  the  credit  disputed. 

The  same  shall  take  place  with  regard  to  all  credits,  when  it  has 
been  impossible  to  hold  a  meeting  on  account  of  the  nonattendance  of 
a  number  of  creditors  sufficient  to  adopt  resolutions,  in  accordance 
with  the  provisions  of  article  1136. 

ART.  1256.  The  meeting,  or  the  judge,  in  a  proper  case,  may  order 
that  the  acknowledgment  of  any  claim  which  has  not  been  sufficiently 
proven  be  left  pending. 

In  such  case  the  person  interested  may  complete  his  proof  in  a 
separate  branch  of  the  record  at  any  time  before  the  holding  of  the 
meeting  for  the  classification  of  the  credits. 

1  If  at  the  meeting  for  the  acknowledgment  of  credits  some  credit  of  the  Treasury 
is  excluded,  without  the  representative  of  the  State  being  present,  notwithstand- 
ing his  citation  at  the  proper  time,  the  Treasury  has  the  benefit  of  restitution  in 
integrum  against  said  resolution  in  the  same  manner  as  is  granted  by  law  for  the 
minors  who  suffer  a  prejudice,  loss,  or  damage  through  the  fault  of  their  guardian. — 
Decision  of  December  13,  1862. 


LAW    OF    CIVIL    PROCEDURE.  241 

ART.  1257.  A  document  shall  be  given  to  the  acknowledged  creditors 
drafted  on  ordinary  paper,  signed  by  the  trustees  and  countersigned 
by  the  judge,  in  which  shall  be  stated  the  amount,  origin,  and 
acknowledgment  of  the  credit. 

ART.  1258.  The  trustees  shall  communicate  the  decision  of  the 
meeting  or  of  the  judge  to  the  creditors  whose  credits  have  not  been 
acknowledged  by  means  of  a  circular  letter,  which  shall  be  delivered 
by  the  court  clerk  to  those  who  have  their  domicile  or  a  legal  repre- 
sentative at  the  place  where  the  proceedings  are  being  held,  in  the 
manner  prescribed  for  notifications,  being  transmitted  by  mail  to  the 
others. 

The  proper  entry  of  the  service  shall  be  made  in  this  separate  record 
and  a  copy  of  the  circular  letter  shall  also  be  attached  thereto. 

Furthermore,  the  court  clerk  shall  return  to  said  creditors  the 
written  evidence  of  their  credits  without  requiring  a  new  order,  when 
they  request  the  same. 

ART.  1259.  The  resolutions  adopted  at  these  meetings  and  the 
decisions  of  the  judge  rendered  in  cases  where  there  are  not  the  two 
majorities,  may  be  impugned  within  eight  days  by  the  creditors  who 
did  not  attend  the  meeting  or  by  those  who  may  have  dissented  from 
or  protested  at  once  against  the  vote  of  the  majority. 

Such  period  shall  commence,  for  the  latter,  from  the  day  following 
the  holding  of  the  meeting,  and  for  the  others,  from  the  day  following 
that  on  which  the  circular  letter  may  have  been  delivered  or  transmitted 
to  them. 

ART.  1260.  If  the  eight  days  should  elapse  without  any  objection 
having  been  made,  the  resolutions  of  the  meeting  or  the  decisions  of 
the  judge,  in  a  proper  case,  shall  become  final,  and  no  objection  against 
the  same  shall  be  admitted. 

ART.  1261.  A  separate  branch  of  the  record  shall  be  formed  of  each 
of  the  objections  which  may  be  made,  which  shall  be  heard  and  deter- 
mined according  to  the  procedure  prescribed  for  incidental  issues,  the 
trustees  and  the  person  interested  in  the  credit  objected  to,  in  a  proper 
case,  being  parties  thereto.  The  decision  rendered  hereon  may  be 
appealed  from  for  review  and  for  a  stay  of  proceedings. 

ART.  1262.  The  trustees  are  obliged  to  sustain  the  resolutions  of  the 
majority,  even  though  their  own  vote  may  have  been  against  the 
sumo,  but  they  are  not  obliged  to  sustain  the  ruling  of  the  judge. 

The  debtor  may  be  a  party  to  the  separate  branches  which  may  be 
formed.  If  he  agrees  to  the  resolutions  adopted,  he  shall  litigate 
jointty  with  the  trustees;  if  he  objects  thereto,  then  jointly  with  the 
objecting  creditor,  and  in  either  case  he  shall  be  represented  by  the 
same  counsel. 

ART.  1263.  The  annulment  of  the  resolutions  of  the  meeting  may 
5190 — -16 


242  LAW    OF    CIVIL    PROCEDURE. 

also  be  requested  when  the  formalities  prescribed  for  the  call,  holding 
of,  and  voting  at  the  meeting  have  not  been  observed. 

Such  request  may  be  made  only  by  the  debtor  or  by  the  creditors, 
who,  having  in  due  time  presented  the  written  evidence  of  their  credits, 
may  not  have  attended  the  meeeting,  or  who  having  attended  should 
have  protested  against  the  validity  of  the  resolution,  abstaining  from 
voting  thereupon.  This  request  must  be  made  within  three  days  after 
the  holding  of  the  meeting,  after  which  it  shall  not  be  admitted. 

It  shall  be  heard  and  determined  according  to  the  provisions  of  arti- 
cle 1221,  but  without  forming  a  separate  branch  of  the  record  and 
suspending  the  course  of  the  principal  proceedings. 

§  2.   Classification  of  credits. 

ART.  1264.  As  soon  as  the  decision  rendered  in  the  incidental  issue 
referred  to  in  the  foregoing  article  becomes  final,  if  the  request  for 
annulment  should  be  denied,  or  if  the  eight  days  granted  by  article 
1259  in  which  to  object  to  the  resolutions  of  the  meeting  or  to  the 
decision  of  the  judge  should  elapse,  another  meeting  of  the  creditors 
whose  claims  may  have  been  acknowledged,  shall  be  called  for  the 
purpose  of  classifying  their  credits,  without  prejudice  to  the  continu- 
ation of  the  separate  branches  of  the  record  which  may  have  been 
formed  in  accordance  with  the  provisions  of  article  1261. 

The  citation  for  this  meeting  shall  be  made  in  accordance  with  the 
provisions  of  article  1251. 

ART.  1265.  From  fifteen  to  thirty  days  must  elapse  between  the  call 
and  the  holding  of  this  meeting. 

If,  in  an  extraordinary  case,  the  judge  should  consider  said  period 
insufficient  to  allow  the  trustees  to  make  the  statements  referred  to  in 
the  following  article,  he  may  extend  said  period  for  the  time  he  may 
consider  absolutely  indispensable. 

ART.  1266.  1  Within  the  intervening  time  the  trustees  shall  prepare, 
for  presentation  at  the  meeting,  four  statements,  which  shall  include: 

The  first,  creditors  whose  claims  are  for  personal  services  and  main- 
tenance. 

If  an  insolvent  or  testate  succession  is  in  question,  this  place  shall 
be  filled  by  the  creditors  whose  claims  are  for  the  funeral  expenses 
proportionate  to  the  means  of  the  deceased,  and  for  the  execution  of 
his  last  will  and  making  of  the  inventory,  and  the  judicial  proceedings 
which  may  have  been  occasioned  by  the  intestate  or  testamentary 
proceedings. 

The  second,  the  mortgage  creditors,  in  the  order  of  preference  estab- 
lished by  law. 

1  See  articles  1921  to  1929  of  the  civil  code  with  regard  to  the  classification  and 
preference  of  credits. 


LAW    OF    CIVIL    PROCEDURE.  243 


In  this  statement  shall  be  included  not  only  the  creditors  who  have 
an  existing*  legal  mortgage  in  their  favor,  but  also  those  who  have  a 
voluntary  mortgage,  it  being  noted  that  the  preference  of  the  latter  is 
limited  to  the  property  specially  mortgaged;  and  if  the  value  of  said 
property  should  not  be  sufficient  to  cover  the  total  amount  of  the 
credit  secured  by  the  mortgage,  thev  shall  be  considered,  with  regard 
to  the  difference,  as  creditors  whose  credits  appear  in  a  public  instru- 
ment (acreedores  escriturarios). 

Creditors  secured  by  a  pledge  shall  also  be  included  in  this  statement, 
their  preference  being  also  limited  to  the  cash  value  of  said  pledge, 
which  shall  be  turned  into  the  funds  of  the  estate  of  the  insolvent. 

The  third,  the  creditors  whose  credits  appear  in  a  public  instru- 
ment, by  order  of  dates. 

The  fourth,  the  ordinary  creditors,  including  in  this  last  statement 
all  the  credits  not  included  in  the  three  preceding  ones.1 

ART.  1267.  The  trustees  shall  make  a  separate  memorandum  of  the 
property  of  amT  kind  whatsoever  which  the  insolvent  might  have  in 
his  possession  belonging  to  third  persons,  stating  the  names  of  the 
owners  thereof. 

If  the  latter  should  have  claimed  said  property,  the  same  shall  be 
delivered  to  them  with  the  consent  of  the  trustees  and  of  the  insolvent. 
If  either  should  not  consent  thereto,  the  matter  shall  be  heard  and 
determined  in  a  separate  branch  according  to  the  procedure  prescribed 
for  the  declaratory  action  which  may  be  proper  according  to  the 
amount  involved. 

ART.  1268.  Before  the  day  fixed  for  the  meeting,  the  trustees  must 
have  rendered  their  reports  in  the  separate  branches  upon  the  credits, 
the  acknowledgment  of  which  may  have  remained  pending,  or  which 
may  have  been  claimed  after  the  statements  referred  to  in  article  1249 
have  been  made. 

If  the  trustees  are  of  the  opinion  that  said  credits  should  be  acknowl- 
edged, they  shall  be  included  in  the  statements  of  the  classification, 
without  prejudice  to  what  the  meeting  may  decide  as  to  their  acknowl- 
edgment. 

ART.  1269.  After  the  meeting  has  been  called  to  order  in  the  manner 
prescribed  for  previous  meetings,  the  session  shall  begin  with  the 
reading  of  the  articles  of  this  law  relating  to  the  classification  of 
credits  and  to  objections  to  resolutions  upon  this  point. 

1  Neither  the  fees  of  attorneys  nor  those  of  solicitors  shall  be  considered  as  expenses 
for  maintenance. — Decisions  of  May  5,  1873,  and  March  5,  1874- 

The  mortgage  creditors  who  have  not  taken  part  in  voting  upon  the  agreement  are 
entitled  to  recover  interest  due  before  or  after  the  debtor  is  declared  insolvent, 
because  his  contracts  continue  without  novation  of  any  kind  whatsoever. — Decision 

nf  M,i,-rti  17,  1876. 

Creditors  for  personal  services  are  such  notwithstanding  the  amount  of  the  salary 
which  they  receive.—  Decision  of  January  13,  1887. 


244  LAW    OF    CIVIL    PROCEDURE. 

Thereupon  the  credits,  the  acknowledgment  of  which  may  be  pend- 
ing, shall  be  discussed,  and  the  report  of  the  trustees  referred  to  in 
the  foregoing  article  shall  be  voted  upon.  The  owners  of  the  credits 
which  have  been  acknowledged  may  take  part  in  the  deliberations  of 
the  meeting  for  the  classification  of  the  credits. 

The  statements  of  the  classification  shall  then  be  taken  up,  and  the 
credits  included  therein  shall  be  discussed. 

Upon  the  termination  of  the  discussion,  the  report  of  the  trustees 
upon  each  claim  shall  be  voted  upon  and,  if  there  should  not  be  una- 
nimity, the  decision  of  the  majority  of  votes  and  amounts  combined  in 
the  manner  prescribed  in  rule  6  of  article  1137  shall  be  approved. 

Upon  the  termination  of  the  meeting  a  minute  of  all  its  proceedings 
shall  be  made  and  signed  by  all  those  present,  and  by  the  judge  and 
the  court  clerk.1 

ART.  1270.  If  the  two  majorities  should  not  be  received,  the  judge 
shall  order  that  the  record  be  brought  before  him  and  shall  decide 
what  he  may  consider  in  accordance  with  law,  upon  the  credit  or  credits 
which  have  caused  the  dissension. 

ART.  1271.  The  provisions  of  the  foregoing  article  shall  also  be 
observed  when  it  may  not  have  been  possible  to  hold  the  meeting  on 
account  of  the  nonattendance  of  the  number  of  creditors  necessary, 
according  to  article  1136,  to  adopt  resolutions. 

In  such  case  the  judge  shall  render  the  decision  which  he  may 
consider  just  upon  each  of  the  separate  branches  made  of  the  credits,  the 
acknowledgment  of  which  is  pending,  should  there  be  any;  and  in  the 
second  branch  he  shall,  without  delay,  render  a  decision  classifying 
the  credits  in  which  he  shall  approve  the  statements  formed  by  the 
trustees,  or  shall  make  therein  the  corrections  which  may  be  proper 
according  to  law. 

ART.  1272.  In  the  case  of  article  1270  the  resolution  of  the  judge 
shall  be  communicated  to  the  trustees  and  to  the  persons  interested  in 
the  credits  which  have  caused  the  disagreement. 

In  the  case  of  article  1271  the  decision  classifying  the  credits  shall 
be  communicated  to  the  trustees  and  to  the  acknowledged  creditors  or 
to  their  representatives  who  have  their  domicile,  or  have  designated 
one,  at  the  place  where  the  proceedings  are  pending. 

If  there  should  be  acknowledged  creditors  who  are  absent  without 
having  any  legal  representative  at  said  place,  notice  of  said  decision 
shall  be  served  upon  them  by  means  of  an  edict,  which  shall  be  posted 
at  the  customary  public  places. 

ART.  1273.  Within  the  eight  days  following  the  meeting  for  the 
classification  of  the  credits,  the  resolutions  thereof  may  be  objected  to 
by  the  acknowledged  creditors  who  did  not  attend  the  same,  or  who, 

1In  insolvency  proceedings  a  decision  upon  the  legality  and  classification  of  credits 
is  final,—  Decision  of  April  15,  1856. 


LAW    OF    CIVIL    PROCEDURE.  245 

having  attended,  should  have  dissented  from  the  vote  of  the  majority 
and  reserved  their  right  to  object  thereto. 

The  resolution  of  the  judge  may  also  be  objected  to  within  the  eight 
days  following  the  service  of  notice  thereof. 

After  the  expiration  of  these  periods  no  objections  shall  be  admitted. 

ART.  1274.  All  objections  which  may  be  made  to  the  resolutions  of 
the  meeting  or  to  the  decision  of  the  judge  with  regard  to  the  classifi- 
cation of  credits,  whether  made  by  one  or  more  creditors,  shall  be 
heard  and  determined  at  the  same  time  in  the  second  separate  branch 
according  to  the  procedure  prescribed  for  incidental  issues. 

The  trustees  shall  always  be  parties  in  these  questions,  and  must,  in 
a  proper  case,  sustain  the  resolution  of  the  meeting. 

The  creditors  whose  credits  may  have  been  objected  to  shall  also  be 
admitted  as  legal  parties,  as  well  as  the  other  creditors  who  may  desire 
to  assist  in  sustaining  or  impugning  the  resolutions. 

All  those  making  common  cause  must  litigate  jointly  and  be  repre- 
sented by  the  same  counsel. 

The  insolvent  shall  not  be  admitted  as  a  party  in  these  issues. 

ART.  1275.  For  the  purpose  of  prepaing  the  objection,  the  record, 
together  with  all  other  data  relating  to  the  acknowledgment  and 
classification  of  credits,  shall  be  delivered  for  a  period  of  six  days  to 
the  person  or  persons  making  the  objection,  and  the  same  shall  be  done 
for  the  answer. 

When,  by  reason  of  the  large  number  of  credits,  the  classification  of 
which  has  been  objected  to,  the  judge  should  consider  it  necessary,  he 
may  extend  to  twelve  days  the  period  for  the  delivery,  and  shall  have 
eight  da}^s  in  which  to  render  a  decision,  the  procedure  prescribed  for 
incidental  issues  being  observed  in  the  subsequent  proceedings. 

This  decision  may  be  appealed  from  for  review  and  for  a  stay  of 
proceedings. 

§  8.  Delay  and  its  effects. 

ART.  1276.  Creditors  who  reside  either  in  the  island  of  Cuba  or 
Porto  Rico,  when  they  are  to  make  use  of  their  rights  in  the  other, 
who  shall  not  have  appeared  in  the  proceedings  before  the  call  for  the 
meeting  for  the  acknowledgment  of  the  credits,  and  who  enter  their 
appearance  thereafter,  shall  be  considered  negligent. 

ART.  1277.  The  legal  effects  of  such  negligence  shall  be — 

1.  That  the  negligent  person  defray  the  costs  of  the  acknowledgment 
of  his  eredit. 

±  Loss  of  any  preference  he  may  be  entitled  to,  being  reduced  to 
the  class  of  a  common  creditor,  if  he  appears  after  the  meeting  for  the 
classification  of  credits. 

3.  Loss  of  the  aliquot  part  he  may  have  been  entitled  to  of  all  divi- 
dends declared  before  his  appearance,  not  having  any  right  to  par- 


246  LAW    OF    CIVIL    PROCEDURE. 

ticipate  in  any  other  dividends  but  in  those  which  may  lu>  declared 
thereafter. 

ART.  1278.  If,  between  the  time  of  the  appearance  and  the  acknowl- 
edgment some  dividend  should  be  declared,  the  negligent  person  shall 
participate  therein,  but  the  amount  due  him  shall  be  kept  in  deposit. 

These  amounts  shall  be  delivered  to  him  when  his  credit  is  acknowl- 
edged. Should  it  not  be  acknowledged,  they  shall  be  returned  to  the 
common  funds  of  the  estate  of  the  insolvent. 

ART.  12T9.  For  the  acknowledgment  of  the  credits  of  the  negligent 
creditors  a  separate  branch  shall  be  formed  with  the  petition  and  docu- 
ments presented  by  each,  and  shall  include  an  authenticated  statement 
of  the  court  clerk,  showing  whether  or  not  said  credit  is  included  in 
the  statement  of  debts  presented  by  the  debtor. 

If  it  should  be  included  in  said  statement,  the  proceedings  shall  be 
transmitted  to  the  trustees  in  order  that  they  may  make  a  report  as  to 
the  acknowledgment  of  the  credit. 

If  it  should  not  be  included  therein,  the  insolvent  shall  be  heard 
for  three  days  before  the  record  of  proceedings  is  transmitted  to  the 
trustees. 

ART.  1280.  If  the  negligent  creditor  should  have  appeared  before 
the  meeting  for  the  classification  is  held,  his  claim  shall  be  reported 
to  the  meeting  in  order  that  a  decision  may  be  arrived  at  as  to  its 
acknowledgment,  should  he  have  done  so  at  a  period  sufficiently  in 
advance  to  allow  the  proceedings  prescribed  in  the  foregoing  article  to 
be  fulfilled. 

Otherwise,  the  judge  shall  decide  as  to  the  acknowledgment,  if  the 
trustees  agree. 

Should  the  trustees  not  give  their  consent,  the  person  interested 
shall  reserve  his  right  to  litigate  such  matter  with  the  trustees  in  the 
declaratory  action  which  may  be  proper  in  view  of  the  amount  involved, 
but  in  all  cases  the  costs  of  the  prior  proceedings  shall  be  imposed 
upon  him. 

ART.  1281.  Creditors  residing  in  either  of  the  islands  of  Cuba  and 
Porto  Rico,  when  they  are  to  exercise  their  right  in  the  other,  what- 
ever be  the  form  in  which  they  have  been  called,  shall  not  be  con- 
sidered negligent  until  after  the  meeting  for  the  classification  has  been 
held;  the  provisions  of  articles  1277  and  1278  shall  apply  to  those  who 
appear  thereafter. 

ART.  1282.  Creditors  residing  in  the  Peninsula,  in  the  Spanish  pos- 
sessions of  Africa,  in  the  Balearic  Islands,  and  in  the  Canaries,  or  in 
any  other  countries,  shall  not  incur  any  penalty,  even  after  the  meet- 
ing for  the  classification  has  been  held. 

If  they  should  appear  thereafter,  a  separate  branch  shall  be  formed, 
wherein  their  claims  must  be  acknowledged  if  legitimate,  and  classified 
by  a  ruling  therein  rendered,  hearing  the  trustees  and  the  insolvent. 


LAW    OF    CIVIL    PROCEDURE.  247 


They  shall  preserve  the  preference  which  may  correspond  to  their 
credits,  and  they  shall  be  put  in  the  place  which  may  be  assigned  them; 
but  in  no  case  can  the  other  creditors  be  obliged  to  return  what  they 
may  have  already  received. 

If  their  credits  should  be  classified  as  common,  they  shall  be  equal- 
ized with  all  those  of  the  same  class;  and  after  this  has  been  done, 
they  shall  be  entitled  to  a  pro  rata  share  of  the  funds  of  the  estate 
still  to  be  distributed. 

ART.  1283.  Negligent  or  tardy  creditors  shall  not  be  heard  in  these 
proceedings,  if  they  should  appear  after  the  distribution  of  all  the 
property  of  the  estate  has  been  made. 

§  4.  Payment  of  credits. 

ART.  1284.  After  the  eight  days  fixed  in  article  1273  have  elapsed, 
without  the  decision  of  the  meeting,  or  the  resolution  of  the  judge,  in 
a  proper  case,  relating  to  the  classification  having  been  impugned,  the 
payment  of  the  credits  shall  be  proceeded  with  in  the  order  established 
therein,  until  the  funds  of  the  estate  which  may  be  disposed  of  have 
been  exhausted. 

ART.  1285.  When  the  objection  made  is  directed  towards  the  annul- 
ment of  the  resolutions  of  the  meeting,  or  includes  the  entire  classifi- 
cation, payments  shall  be  suspended  until  a  final  decision  is  rendered 
thereupon. 

If  it  is  directed  only  against  the  classification  of  some  credits,  pay- 
ments shall  be  proceeded  with,  a  separate  branch  of  the  record  being 
formed  with  certified  copies  of  the  statements  and  resolutions  of  the 
meeting,  or  of  the  judge,  upon  the  classification  of  the  credits. 

ART.  1286.  In  the  case  of  the  second  paragraph  of  the  foregoing 
article,  the  amounts  corresponding  to  the  credits  objected  to  shall  be 
kept  on  deposit  until  a  final  decision  is  rendered  on  the  objection,  in 
order  that  they  may  be  properly  applied. 

The  same  shall  be  done  with  those  appertaining  to  the  credits,  the 
acknowledgment  of  which  may  have  been  objected  to,  if  no  final  deci- 
sion should  as  yet  have  been  rendered  on  this  issue. 

ART.  1287.  The  amounts  pertaining  to  the  creditors  whose  credits 
having  been  acknowledged  and  classified  by  the  meeting  shall  be  paid 
to  them,  notwithstanding  the  same  may  have  been  objected  to  by  an 
individual  creditor,  if  they  should  furnish  sufficient  security  to  the 
satisfaction  and  under  the  liability  of  the  trustees,  to  answer  for  the 
amounts  they  may  receive. 

ART.  1288.  After  the  payment  of  the  credits  included  in  the  first 
three  classification  statements  has  been  made  in  the  proper  order,  the 
balance  of  the  funds  shall  be  distributed  pro  rata  among  the  common 
creditors,  in  the  form  of  dividends,  which  shall  be  declared  as  the  prop- 
erty is  sold  and  sufficient  funds  are  collected  to  cover  at  least  five  per 
(•fiit  of  the  pending  credits. 


248  LAW    OF    CIVIL    PROCEDURE. 

If,  in  such  case,  the  trustees  should  delay  to  recommend  to  the  court 
the  payment  of  a  dividend,  any  of  the  creditors  interested  may 
request  it. 

ART.  1289.  In  order  to  make  the  payment,  the  court  shall  issue  the 
proper  warrant  against  the  trustees  in  favor  of  each  of  the  creditors 
who  is  to  be  paid  in  full,  and  the  court  shall  order  at  the  same  time 
that  they  be  furnished  the  necessary  funds,  which  shall  be  withdrawn 
from  deposit. 

Upon  delivery  of  the  warrant  to  the  creditor,  the  written  acknowl- 
edgement of  his  credit  shall  be  taken  up,  upon  which  document  a 
memorandum  of  its  cancellation  shall  be  made,  which  shall  be  signed 
by  the  person  interested  and  by  the  court  clerk,  and  the  latter  shall 
attach  said  document  to  the  separate  branch  of  the  record  which  con- 
tains the  evidence  of  the  credit,  a  note  thereof  being  made  on  the  sec- 
ond branch  of  the  record. 

The  trustees,  or  the  one  commissioned  therefor  by  his  associates, 
shall  pay  the  warrant,  a  receipt  being  entered  thereon  by  the  person 
interested,  which  shall  be  retained  by  the  trustee  as  a  voucher  to  be 
used  in  the  settlement  of  his  accounts. 

ART.  1290.  If  payment  is  made  in  the  form  of  dividends  to  the 
common  creditors,  the  payment  shall  be  made  by  the  trustees  at  whose 
disposal  the  necessary  funds  shall  be  placed. 

The  trustees,  or  the  one  commissioned  therefor,  shall  deliver  to  each 
creditor,  or  to  his  legal  representative,  the  amount  to  which  he  may  be 
entitled  in  the  distribution,  making  a  note  thereof  upon  the  written 
acknowledgment  of  the  credit,  without  the  presentation  of  which  pay- 
ment shall  not  be  made,  and  the  person  interested  shall,  in  addition, 
give  a  separate  receipt  to  the  trustees. 

ART.  1291.  Afterpayment  has  been  made,  the  trustees  shall  present 
to  the  court  an  account,  vouched  for  with  the  receipts  of  the  creditors, 
of  the  application  made  of  the  funds  received  for  the  purpose,  replac- 
ing on  deposit  the  balance  on  hand,  should  there  be  any,  together  with 
the  amounts  pertaining  to  the  creditors  who  have  not  called  therefor. 

This  account  shall  be  attached  to  the  record  of  accounts,  and  the 
court  clerk  shall  deliver  to  the  trustees  the  proper  receipts  containing 
the  statements  which  may  be  proper  for  their  security. 

ART.  1292.  After  all  the  common  creditors  have  been  paid  in  full, 
the  written  acknowledgement  of  their  credits  shall  be  taken  up  and 
cancelled  when  payment  of  the  last  dividend  is  made. 

In  such  case,  or  when  all  the  funds  of  the  estate  have  been  exhausted, 
the  proceedings  shall  be  considered  as  terminated  and  the  provisions 
contained  in  articles  1240  et  seq.  shall  be  observed. 


LAW    OF    CIVIL    PROCEDURE.  249 

SECTION  VII. — Third  separate  record — Classification  of  insolvency 

proceedings. 

ART.  1293.  After  the  trustees  have  been  appointed,  the  first  separate 
record  of  the  proceedings  shall  be  delivered  to  them  in  order  that, 
within  thirty  days,  and  after  examining  the  books  and  papers  of  the 
debtor,  they  may  state  in  a  written  argument  the  opinion  which  they 
may  have  formed  with  regard  to  the  insolvency  and  the  causes  there- 
for, formulating  the  conclusions  or  advancing  the  theories  which  they 
may  consider  proper.1 

ART.  129±.  The  third  separate  record  shall  be  formed  with  true 
copies  of  the  report,  statement,  and  memorandum  presented  by  the 
debtor,  and  the  original  statement  of  the  trustees  and  the  documents 
accompanying  the  same.  After  the  first  separate  record  has  been 
attached  hereto  temporarily,  all  the  papers  shall  be  delivered  to  the 
deputy  public  prosecutor  in  order  that  he  may  render  his  report 
thereon. 

ART.  1295.  If  the  report  of  the  deputy  public  prosecutor  should 
agree  with  the  opinion  of  the  trustees,  and  both  are  favorable  to  the 
debtor,  the  judge  shall  order  the  record  brought  before  him,  and  may 
declare  the  innocence  of  the  insolvent  if  he  deems  it  proper. 

ART.  1296.  When  the  report  of  the  trustees  and  of  the  deputy  pub- 
lic prosecutor,  or  of  either  of  them,  should  be  unfavorable  to  the 
insolvent,  or  if  the  judge  believes  that  he  should  not  defer  to  said 
opinions,  even  if  favorable,  he  shall  order  that  the  record  be  referred 
for  a  period  of  six  days  to  the  insolvent,  in  order  that  he  may  allege 
what  he  may  deem  proper. 

This  issue  shall  be  heard  and  determined  according  to  the  procedure 
prescribed  for  incidental  issues  arising  in  ordinary  actions,  and  the 
decision  rendered  thereon  may  be  appealed  from  for  review  and  for  a 
sta}T  of  proceedings. 

ART.  1297.  All  creditors  shall  have  a  right  to  appear  in  this  pro- 
ceeding and  prosecute  the  insolvent. 

If  one  or  more  of  said  creditors  should  do  so,  and  their  objects  are 
the  same  as  those  of  the  trustees,  they  shall  litigate  jointly  and  be  rep- 
resented by  the  same  counsel. 

If  their  purposes  were  different,  they  shall  litigate  separately. 

1  Article  24  of  the  mortgage  law  is  not  violated  by  a  decision  which  orders  the  pay- 
ment of  the  costs  incurred  by  trustees  during  insolvency  proceedings  before  the  pay- 
ment of  a  mortgage  credit,  because  such  expenses  and  costs  constitute  a  debt  which 
must  be  paid  from  the  property  of  the  estate  of  the  insolvent  during  the  course  of 
the  proceedings,  and  upon  the  conclusion  thereof  when  the  accounts  are  settled. 
This  payment  can  not  be  classified  as  a  preferred  payment  among  the  creditors,  but 
as  an  obligation  contracted  by  the  said  creditors  when  they  appoint  the  trustees  and 
deposit  their  confidence  in  them. — Decision  of  June  11,  1872. 


250  LAW    OF    CIVIL    PROCEDURE. 

ART.  1298.  If  the  culpability  of  the  insolvent  is  declared  by  a  final 
judgment,  which  declaration  shall  be  understood  for  civil  purposes 
only,  the  judge  shall  order  that  criminal  proceedings  be  instituted 
against  him  in  the  third  separate  record.  The  procedure  thereafter 
shall  be  that  prescribed  for  criminal  actions. 

ART.  1299.  When  a  company,  association,  or  corporation  is  declared 
insolvent  the  trustees  shall  state,  in  the  report  prescribed  by  article 
1298,  the  opinion  they  may  have  formed  as  to  the  criminal  or  civil 
liability  which  the  managers,  directors,  or  counsel  of  the  insolvent 
company  may  have  incurred  by  reason  of  their  participation  in  acts, 
negotiations,  or  agreements  contrary  to  their  by-laws  or  to  law. 

ART.  1300.  In  the  cases  mentioned  in  the  foregoing  article,  after  the 
third  separate  record  has  been  formed  in  the  manner  prescribed  in 
article  1294,  and  heard  and  determined  in  the  manner  established  in 
said  article  and  in  the  following  ones,  a  declaration  shall  be  made  as 
to  whether  there  are  or  are  not  grounds  sufficient  to  enforce  liability 
against  all  or  any  of  the  persons  who  may  have  taken  part  in  the 
management  of  the  company. 

If  the  liability  to  be  enforced  is  criminal,  the  provisions  prescribed 
in  article  1298  shall  be  observed,  and  if  civil,  the  trustees  may  institute 
the  proper  action. 

SECTION  VIII. — Settlements  between  creditors  and  the  insolvent. 

ART.  1301.  At  any  stage  of  the  insolvency  proceedings,  after  the 
examination  and  acknowledgment  of  the  credits,  and  not  before,  the 
creditors  and  the  insolvent  may  make  such  settlements  as  they  may 
consider  proper.1 

ART.  1302.  Every  petition  made  by  the  debtor  or  by  any  of  the 
creditors  that  a  meeting  be  called  for  the  purpose  of  making  a  settle- 
ment shall  contain  the  following  requisites,  without  which  it  shall  not 
be  admitted: 

1.  That  the  terms  of  the  settlement  be  clearly  and  precisely  stated. 

2.  That  there  be  as  many  printed  or  written  copies  thereof  attached 
as  there  are  acknowledged  creditors. 

3.  That  the  person  asking  for  a  settlement  binds  himself  to  defray 
the  expenses  incurred  in  calling  and  holding  the  meeting,  even  though 
he  defends  as  a  poor  person,  securing  the  payment  to  the  satisfaction 
of  the  judge. 

ART.  1303.  If  the  trustees  or  the  deputy  public  prosecutor  (prom,o- 
tor  fiscal)  or  any  creditor  shall  have  in  the  third  separate  record 
requested  that  the  insolvency  be  declared  fraudulent,  the  debtor  can 
not  make  any  settlement  with  his  creditors  until  a  final  judgment  is  ren- 
dered against  said  classification. 

1  The  provisions  of  this  article  are  to  be  understood  with  the  limitation  prescribed 
by  article  1303. 


,„ 


LAW    OF    CIVIL    PROCEDURE.  251 

ART.  1304.  The  provisions  of  the  foregoing-  article  shall  not  be  appli- 
cable to  companies  or  associations  which  have  been  declared  insolvent, 
if  their  administrators  or  managers  should  be  liable  therefor. 

The  guilt  which  the  latter  may  have  incurred  shall  not  deprive  the 
companies  of  the  benefit  of  a  settlement  with  their  creditors;  but  pro- 
posals for  a  settlement  can  not  be  made  by  the  guilty  administrator, 
nor  can  said  companies  be  represented  by  him. 

ART.  1305.  If  proposals  for  settlements  should  be  presented  when  a 
meeting  for  the  classification  of  the  credits,  or  any  subsequent  meeting 
is  to  be,  or  has  been  called,  said  proposals  shall  be  considered  before 
any  other  matter  at  said  meeting  without  the  necessity  of  a  special  call. 

If  the  proposals  should  be  made  before  the  meeting  for  the  acknowl- 
edgment of  credits,  they  shall  also  be  considered  at  the  same  meeting, 
but  after  said  acknowledgment,  and  only  creditors  whose  credits  have 
been  acknowledged  shall  be  allowed  to  take  part  in  the  discussion  upon 
the  settlement. 

In  either  case  the  proposals  must  be  presented  a  period  sufficiently 
in  advance  to  permit  the  copies  to  be  delivered  to  the  creditors  twenty  - 
r  hours  before  the  time  fixed  for  the  holding  of  the  meeting. 

ART.  1306.  With  the  exception  of  the  cases  mentioned  in  the  fore- 
going article  and  in  article  1303,  after  the  petition  has  been  presented 
with  the  requisites  prescribed  in  article  1302,  the  judge  shall  grant  the 
same  and  shall  order  that  a  meeting  of  the  creditors  be  called  for  the 
purpose  of  considering  the  settlement,  fixing  the  day,  hour,  and  place 
for  the  holding  thereof. 

ART.  1307.  At  least  fifteen  days  must  elapse  between  the  call  for  the 
meeting  and  the  time  it  is  held.  The  judge  may  extend  this  period  to 
thirty  days  if  the  circumstances  of  the  insolvency  proceedings  so 
require. 

ART.  1308.  The  creditors  whose  credits  have  been  acknowledged  by 
the  meeting  or  by  the  judge,  and  those  whose  claims  are  pending 
acknowledgment,  or  their  representatives,  if  they  have  any,  shall  be 
cited  personally  for  this  meeting  by  means  of  a  writ,  there  being 
delivered  to  each  at  the  time  of  the  citation  one  of  the  copies  presented 
in  accordance  with  the  provisions  of  number  2  of  article  1302. 

Absentees,  should  there  be  any,  whose  domicile  is  unknown,  shall  be 
cited  by  edicts  in  the  manner  prescribed  in  article  1195. 

The  purpose  of  the  meeting  shall  be  stated  in  the  writs,  as  well  as 
the  day,  hour,  and  place  at  which  it  is  to  be  held. 

ART.  1301).  The  call  for  the  meeting  to  consider  the  settlement  shall 
cause  a  suspension  of  the  second  separate  record  of  the  insolvency 
proceedings,  and  also  that  of  the  first  in  so  far  as  it  relates  to  the  sale 
of  the  property,  until  after  the  settlements  proposed  have  been  dis- 
cussed and  a  resolution  adopted  thereon. 


252  LAW    OF    CIVIL    PROCEDURE. 

ART.  1310.  The  provisions  of  articles  1135  to  1152,  relating  to  com- 
position and  respite,  shall  also  be  applicable  to  settlements  proposed 
after  the  declaration  of  insolvency,  with  the  following  modifications: 

1.  After  the  meeting  has  been  called  to  order,  the  provisions  of  this 
law  relating  to  settlements  between  a  debtor  and  his  creditors  shall  be 
read,  after  which  the  facts  relating  to  the  insolvency  and  to  its  actual 
condition  shall  be  considered,  including  that  of   the  third  separate 
record,  and  after  the  proposals  for  settlement  have  been  read  a  dis- 
cussion shall  be  had  thereupon. 

2.  In  the  case  referred  to  in  article  1141,  if  the  proposals  for  settle- 
ment should  not  be  adopted,  the  insolvency  proceedings  shall  be  con- 
tinued, and  the  same  shall  be  done  if,  in  case  of  an  objection,  the 
nullity  or  inefficiency  of  the  settlements  is  declared. 

3.  The  trustees  will  be  obliged  to  sustain  the  decision  of  the  meet- 
ing, for  which  purpose  they,  together  with  the  parties  referred  to  in 
article  1148,  shall  be  parties  to  the  proceedings  brought  against  the 
same. 

4.  The  decision  rendered  in  such  proceedings  may  be  appealed  from 
for  review  and  for  a  stay  of  proceedings,  when  the  nullity  or  ineffi- 
ciency of  the  settlement  is  declared.     Otherwise  the  appeal  shall  be 
allowed  for  review  only,  and  the  settlement  made  between  the  debtor 
and  the  creditors  who  accept  the  same  shall  be  carried  out,  without 
prejudice  to  what  may  be  decided  by  final  judgment. 

ART.  1311.  As  soon  as  the  decision  of  the  meeting  approving  the 
settlement  becomes  final,  the  trustees  shall  communicate  it  by  circular 
to  the  creditors  acknowledged  and  to  those,  the  acknowledgment  of 
whose  credits  is  pending,  who  may  not  have  attended  the  meeting. 
Said  decision  shall  also  be  published  by  edicts  in  the  same  newspapers 
in  which  the  declaration  of  insolvency  was  inserted,  a  copy  thereof 
being  attached  to  the  record. 

Thereafter  the  proceedings  shall  be  considered  closed,  and  such 
orders  shall  be  made  therein  as  may  be  proper  for  the  fulfillment  of 
the  settlement,  which  shall  be  binding  on  all  creditors  other  than  those 
excepted.1 

SECTION  IX. — Maintenance  of  the  insolvent. 

ART.  1312.  If  the  insolvent  should  demand  an  allowance  for  mainte- 
nance, the  judge  shall  fix  the  amount  which  he  may  consider  necessary 
in  view  of  the  circumstances,  but  only  in  case  that,  in  his  judgment,  the 
assets  are  in  excess  of  the  liabilities. 

The  ruling  granting  or  denying  the  request  shall  be  temporary  and 
cannot  be  appealed  from.2 

1  See  article  1919  of  the  Civil  Code. 

3  The  provisions  of  articles  1312  and  1317  of  this  law  are  not  applicable,  because  the 
Code  of  Commerce  contains  provisions  hereon. — Decision  of  May  14,  1889. 


£ 


LAW    OF    CIVIL    PROCEDURE.  253 

ART.  1313.  The  allowance  temporarily  made  by  the  judge  shall  be 
considered  at  the  first  meeting  of  creditors  which  may  be  held,  and 
said  meeting  may  approve,  modify,  or  discontinue  said  allowance,  tak- 
ing into  consideration  the  necessities  and  circumstances  of  the  insol- 
vent, but  it  shall  not  refuse  to  grant  the  same  when  it  does  not  clearly 
appear  that  the  assets  are  insufficient  to  pay  the  indebtedness. 

ART.  1314.  The  decision  of  the  meeting  granting  or  refusing  to 
grant  maintenance  may  be  objected  to  by  the  debtor  or  by  the  creditors 
who  may  not  have  attended  the  same,  and  by  those  who  niay  have  dis- 
sented from  and  protested  against  the  majority  vote,  if  they  institute 
proceedings  within  eight  days  after  the  resolution  was  adopted. 

The  objection  shall  be  heard  and  determined  in  accordance  with  the 
provisions  prescribed  for  incidental  issues,  those  making  common  cause 
litigating  jointly  and  represented  by  the  same  counsel,  and  the  period 
for  the  admission  of  evidence  may  be  extended  to  thirty  days,  if  the 
period  granted  by  article  752  should  not  be  sufficient. 

ART.  1315.  During  the  pendency  of  the  proceedings  for  maintenance 

e  debtor  shall  receive  the  allowance,  if  any  should  have  been  granted 
y  the  judge  or  the  meeting;  but  not  if  the  judge  and  the  meeting 
should  both  have  refused  to  grant  it. 

Should  there  be  any  difference  between  the  amount  fixed  by  the 
judge  and  that  fixed  by  the  meeting,  the  amount  fixed  by  the  latter 
shall  be  given  the  preference. 

TITLE  XIII. 

PEOCEEDINGS  IN  BANKRUPTCY.1 

ART.  1316.  In  accordance  with  the  provisions  of  article  I2  of  the 
Code  of  Commerce,  amended  by  the  law  of  July  30,  1878,  every  mer- 
chant, even  though  not  inscribed  in  the  roster  of  his  class,  who  makes 
an  application  in  bankruptcy  shall  be  subject  to  the  procedure  pro- 
vided therefor  in  said  code  and  in  this  title,  and  can  not  subject  himself 
to  the  procedure  prescribed  for  insolvency  proceedings. 

1  The  law  refers  to  the  provisions  of  the  Code  of  Commerce  of  1829,  for  which  reason 
the  articles  in  question  are  inserted  as  notes. 

2 This  article  is  as  follows: 

"ARTICLE  1.  Those  Avho  have  the  legal  capacity  to  trade  and  base  their  civil  status 
thereon,  and  who  devote  themselves  habitually  and  ordinarily  to  commercial  traffic, 
and  are,  in  addition  inscribed  in  the  roster  of  merchants,  shall,  for  all  legal  purposes, 
be  considered  merchants,  and,  as  such,  subject  to  the  provisions  of  this  code. 

' '  Failure  to  be  inscribed  in  the  roster  does  not  exempt  the  person  engaged  in  com- 
merce from  being  subject  in  court  to  the  provisions  of  this  code,  which  shall  be 
applicable  to  him,  on  the  petition  of  a  legitimate  party,  from  the  moment  he 
announces  to  his  creditors  that  he  has  suspended  or  postponed  the  payment  of  his 
obligations  which  are  due." 


254  LAW    OF    CIVIL    PROCEDURE. 

Judges  shall  not  allow  petitions  for  a  declaration  of  insolvency  and 
shall  make  a  declaration  of  bankruptcy  with  regard  to  those  who  may 
be  in  said  position.1 

ART.  1317.  The  provisions  prescribed  for  insolvency  proceedings  in 
the  foregoing  title  shall  be  applicable  to  all  cases  which  are  not  pro- 
vided for  in  the  Code  of  Commerce  and  in  this  title,  and  they  shall  be 
considered  supplementary  hereto. 

ART.  1318.  In  the  bankruptcy  of  railway,  canal,  and  other  compa- 
nies of  a  similar  character  engaged  in  public  works,  subsidized  by  the 
State,  the  special  provisions  prescribed  by  the  law  of  November  12, 
1869,  shall  be  observed.2 

ART.  1319.  The  procedure  for  the  bankruptcy  of  merchants  shall  be 
divided  into  five  sections,  the  proceedings  relating  to  each  section 
being  entered  in  the  proper  separate  record,  which  shall  be  subdivided 
into  the  number  of  branches  which  may  be  considered  necessary  for  an 
orderly  and  clear  procedure  and  for  speedy  action,  unretarded  by  inci- 
dental matters  that  can  not  be  heard  and  determined  at  the  time. 

ART.  1320.  The  first  section  shall  include  all  that  relates  to  the  dec- 
laration of  bankruptcy,  the  provisions  consequent  thereto  and  the 
enforcement  thereof,  the  appointment  of  trustees  and  matters  relating 
to  their  removal  and  renewal,  and  the  settlement  between  the  creditors 
and  the  bankrupt  by  which  the  proceedings  are  terminated. 

The  second  shall  include  the  proceedings  had  for  the  seizure  of  the 
property  of  the  bankrupt  and  all  that  relates  to  the  administration  of 

lrThe  Code  of  Commerce  of  1829  required  for  a  declaration  of  bankruptcy  that  the 
bankrupt  be  a  merchant,  this  fact  to  be  determined  by  the  engagement  in  com- 
merce and  the  inscription  in  the  commercial  registry.  (Decision  of  February  15, 1875. ) 
The  last  requisite  has  not  been  necessary  since  the  promulgation  of  the  law  of  July 
30,  1878,  and  is  not  required  by  article  1  of  the  code  of  1885. 

After  the  record  of  an  execution  against  the  bankrupt  has  been  consolidated  with 
the  bankruptcy  proceedings,  with  the  consent  of  the  judgment  creditor,  any  incident 
of  the  execution  can  not  be  separated  from  the  bankruptcy. — Decision  of  August  18, 
1863. 

All  executory  proceedings  pending  against  the  bankrupt  must  be  consolidated  to 
the  universal  bankruptcy  proceedings. — Decision  of  April  9,  1864- 

Civil  actions  against  the  bankrupt  pending  at  the  time  of  the  declaration  of  bank- 
ruptcy and  those  instituted  against  his  property  must  be  heard  and  determined  with 
the  trustees  as  parties  thereto. — Decision  of  April  11,  1864. 

In  order  that  universal  bankruptcy  proceedings  may  include  executory  process 
against  the  bankrupt,  it  is  necessary  that  said  executory  proceedings  have  been  insti- 
tuted after  the  bankruptcy  proceedings  were  instituted,  or  that  they  were  pending  at 
the  time  thereof. — Decision  of  June  14,  1866. 

Every  assignment  of  property  made  by  merchants  is  understood  to  be  a  bank- 
ruptcy and  shall  be  governed  by  the  commercial  laws. — Decisions  of  March  20,  1873, 
and  March  20,  1875. 

A  person  who  is  not  a  merchant  can  not  apply  for  a  declaration  of  bankruptcy  nor 
be  adjudged  a  bankrupt. — Decision  of  December  21,  1874- 

2  See  law  in  Appendix. 


LAW    OF    CIVIL    PEOCEDURE.  255 

the  bankruptcy  until  its  final  liquidation  and  the  rendition  of  accounts 
by  the  trustees. 

The  third,  the  actions  which  may  have  been  instituted  on  account  of 
the  retroactive  effects  of  the  bankruptc}7  on  the  contracts  and  acts  exe- 
cuted by  the  bankrupt  prior  to  the  adjudication. 

The  fourth,  the  examination  and  acknowledgment  of  the  claims 
against  the  bankrupt  and  the  classification  and  payment  of  the  creditors. 

The  fifth,  the  classification  of  the  bankruptcy  and  the  discharge  of 
the  bankrupt. 

SECTION  I. — Declaration,  of  bankruptcy. 

ART.  1321.  A  petition  for  a  formal  declaration  of  bankruptcy  may 
be  made  by  the  bankrupt  himself  or  by  any  legitimate  creditor  whose 
right  arises  from  commercial  obligations.1 

1  "As  prescribed  by  article  1323  of  the  law  of  civil  procedure,  in  accordance  with 
the  provisions  of  article  1016  of  the  Code  of  Commerce  of  1829  and  875  of  the  code  in 
force,  of  1885,  a  formal  declaration  of  bankruptcy  may  be  requested  by  the  bankrupt 
himself  or  by  any  legitimate  creditor  whose  right  is  based  upon  commercial  obliga- 
tions, and  in  accordance  with  article  1324  of  the  said  law  of  procedure  the  statement 
of  the  merchant  who  states  that  he  is  a  bankrupt  must  be  presented  in  the  manner 
prescribed  in  articles  1017  to  1022  of  said  code  of  1829,  otherwise  not  having  any  legal 
effects  whatsoever  and  it  can  not  even  be  acted  upon." — Decision  of  March  8,  1883. 

It  is  necessary,  according  to  article  876  of  the  Code  of  Commerce  of  1885,  for  a 
declaration  of  bankruptcy  at  the  instance  of  a  creditor  that  the  request  be  based  on  an 
title  by  virtue  of  which  an  execution  or  writ  of  attachment  was  issued,  and  that  the 
results  of  the  attachment  should  not  be  sufficient  to  cover  the  payment. 

A  declaration  of  bankruptcy  in  accordance  with  the  same  article  will  also  be  proper 
at  the  instance  of  creditors  who,  although  they  have  not  obtained  a  writ  of  attach- 
ment, prove  their  credits  and  that  the  merchant  has  generally  defaulted  in  the  pay- 
ment of  his  current  obligations  and  that  he  has  not  presented  his  proposition  of  set- 
tlement in  the  case  of  suspension  of  payments  within  the  period  fixed  in  article  872 
of  said  code. 

At  the  present  time  it  is  not  necessary  that  the  unpaid  obligations  be  commercial, 
as  the  new  code  does  not  so  provide  in  its  article  874,  thus  abolishing  by  this  silence 
on  the  point  any  difference  between  the  debts  which  a  merchant  does  not  pay.  This 
article  is  as  follows:  "A  merchant  shall  be  considered  in  a  state  of  bankruptcy  who 
does  not  meet  his  current  obligations." 

The  new  Code  of  Commerce  sanctions  the  existence  of  another  intermediate  com- 
imTcial  condition  prior  to  the  bankruptcy,  which  is  the  suspension  of  payments,  and 
to  which  it  devotes  articles  870  to  873. 

The  declaration  of  bankruptcy  relates  always  to  the  day  on  wrhich  payments  were 
suspended,  wrhatever  be  the  date  upon  which  said  declaration  becomes  final,  and 
consequently  article  1014  of  the  Code  of  Commerce  (the  old  code)  is  not  violated  if 
said  declaration  is  made  at  a  time  when  the  bankrupt  has  ceased  being  a  merchant, 
provided  that  he  was  such  on  the  day  of  the  suspension  of  payments. — Decision  of 
Jane  19,  1863. 

Civil  actions  pending  against  the  bankrupt  at  the  time  the  declaration  of  bank- 
ruptcy is  made,  and  those  instituted  thereafter,  must  be  continued  and  determined 
with  the  trustees,  who  are  his  legal  representatives  and  obliged  to  fulfill  the  obliga- 


256  LAW    OF    CIVIL    PROCEDURE. 

ART.  1322.  A  petition  of  a  merchant  in  bankruptcy  must  be  pre- 
sented drafted  in  the  manner  and  together  with  the  papers  prescribed 
by  the  provisions  of  articles  1017,  1018,  1019,  1020.  1021,  and  1022 
of  the  Code  of  Commerce. 

Otherwise  the  petition  shall  not  be  allowed  nor  shall  the  presenta- 
tion thereof  so  benefit  the  party  in  interest  as  to  consider  that  he  has 
complied  with  the  obligation  imposed  upon  him  by  article  1017  of  the 
said  code.1 


tions  legitimately  contracted  by  the  bankrupt  at  the  proper  time.  —  Decision  of 
11,  1864. 

The  privilege  which  the  Code  of  Commerce  grants  to  legitimate  creditors,  in  a  proper 
case,  to  demand  the  formal  declaration  of  the  bankruptcy  of  their  respective  debtors 
can  only  be  understood  as  limited  or  restricted  by  the  agreements  they  may  have 
made  with  each  other  when  it  should  appear  therefrom,  or  when  it  can  be  legitimately 
deduced,  that  such  has  been  the  will  of  the  contracting  parties. 

When,  according  to  the  provisions  of  articles  1003,  1016,  and  1025  of  the  Code  of 
Commerce  (870,  874,  and  876  of  the  code  in  force),  a  declaration  of  bankruptcy  is 
proper  on  account  of  the  debtor  having  temporarily  suspended  his  payments  and 
demanded  an  extension  from  his  creditors,  it  may  be  ordered,  at  the  instance  of  any 
of  them,  even  though  there  should  not  be  a  prior  spontaneous  statement  on  the  part 
of  the  debtor,  provided  that  the  indispensable  circumstance  of  his  refusal  to  pay  his 
obligations  appears  previously  in  due  form.  —  Decision  of  June  8,  1868. 

In  the  case  of  the  bankruptcy  of  an  association  the  individual  creditors  of  the 
partners  are  not  included  among  those  of  the  association,  but  after  the  debts  of  the 
latter  have  been  paid  said  debtors  may  make  use  of  their  rights  against  the  balance 
remaining.  —  Decision  of  December  29,  1870. 

A  state  of  bankruptcy  must  be  declared  by  a  judicial  order  at  the  instance  of  the 
bankrupt  or  of  a  legitimate  creditor.  —  Decision  of  March  20,  1873. 

When  a  merchant  who  has  been  declared  a  bankrupt  requests  that  he  be  allowed 
to  assign  all  his  property,  it  renders  it  unnecessary  for  the  creditors  to  prove  their 
personal  capacity  and  a  cessation  or  refusal  to  make  payments.  —  Decision  of  November 
18,  1884. 

1(rhe  articles  of  the  Code  of  Commerce  herein  referred  to  are  as  follows: 

"ARTICLE  1017.  It  is  the  duty  of  every  merchant  finding  himself  in  a  state  of 
bankruptcy  to  advise  the  judge  of  first  instance  of  his  domicile  thereof  within  the 
three  days  following  that  on  which  he  has  suspended  the  payment  of  his  current 
obligations,  filing  for  this  purpose  in  the  office  of  said  court  a  statement  showing 
that  he  is  a  bankrupt  and  designating  his  residence,  offices,  warehouses,  and  all  other 
commercial  establishments. 

"ART.  1018.  To  the  statement  in  which  the  bankrupt  states  that  he  is  a  bankrupt 
shall  be  attached: 

"1.  A  general  balance  sheet  of  his  business. 

"2.  A  report  or  statement  setting  forth  the  direct  and  immediate  causes  of  his 
bankruptcy. 

"ART.  1019.  In  the  general  balance  the  bankrupt  shall  include  a  list  of  all  his  real 
and  personal  property,  goods,  and  commercial  stock,  affixing  a  value  to  the  same, 
his  credits  and  rights  of  every  kind,  as  well  as  a  list  of  his  unpaid  debts  and  obligations. 

"ART.  1020.  To  the  account  of  the  causes  of  the  bankruptcy  the  bankrupt  may 
attach  all  the  documentary  proof  he  may  desire. 

"ART.  1021.  Both  the  statement  of  bankruptcy  and  the  balance  sheet  and  the 
report  prescribed  in  article  1018  shall  bear  the  signature  of  the  bankrupt,  or  that  of 


LAW    OF    CIVIL    PROCEDURE.  257 

ART.  1323.  A  creditor  who  files  a  petition  praying  that  his  debtor 
be  declared  a  bankrupt  shall  be  obliged,  above  all,  to  prove  his  per- 
sonal capacity  by  means  of  the  certified  copy  of  the  execution  issued 
at  his  instance  against  the  debtor,  or  by  means  of  an  authentic  docu- 
ment proving  his  credit,  with  which  previous  requisite  the  evidence 
which  he  may  present,  with  regard  to  the  details  mentioned  in  article 
1025  of  the  Code  of  Commerce,  shall  be  admitted. 

After  said  matters  have  been  sufficiently  proven,  the  judge  of  first 
instance  shall  make  the  declaration  of  bankruptcy  without  a  citation 
nor  a  hearing  of  the  bankrupt,  ordering  that  the  other  steps  be  taken 
consequent  thereupon.1 

the  persons  authorized  under  his  liability  to  sign  said  documents  by  special  power  of 
attorney,  of  which  an  authentic  copy  shall  be  attached,  without  which  requisite  they 
shall  not  be  admitted. 

"ART.  1022.  When  the  bankruptcy  is  that  of  a  company  in  which  there  are  gen- 
eral partners,  there  shall  be  included  in  the  statement  the  name  and  domicile  of 
each.  All  the  partners  who  reside  in  the  town  at  the  time  of  making  the  declaration 
of  bankruptcy  shall  sign  the  statement  as  well  as  the  other  documents  which  are  to 
accompany  the  same." 

Of  the  six  preceding  articles  of  the  Code  of  Commerce  of  1829,  only  article  1017  is 
partly  reproduced  in  article  871  of  the  code  at  present  in  force. 

Art.  1019  of  the  Code  of  Commerce  relates  to  a  case  where  a  merchant  has  stated 
that  he  is  a  bankrupt,  and  is  not  applicable  to  the  case  where  the  declaration  has 
been  made  at  the  instance  of  a  creditor  by  virtue  of  the  provisions  of  article  1060, 
and  the  balance  sheet  .is  not  furnished. — Decision  of  June  22,  1867. 

According  to  article  1035  of  the  Code  of  Commerce  of  1829,  the  bankrupt  is  dejure 
separated  and  inhibited  from  administering  any  of  his  property,  and  it  must  be 
considered,  according  to  article  1001,  that  this  state  exists  and  must  be  enforced  from 
the  date  on  which  the  merchant  suspends  the  payment  of  his  current  obligations, 
for  which  purpose  the  court,  in  accordance  with  the  provisions  of  article  1024,  must 
fix  the  date  in  question,  to  which  the  effects  of  the  declaration  of  bankruptcy  shall 
be  retroactive,  and,  therefore,  all  the  acts  of  ownership  or  administration  performed 
or  which  may  be  performed  by  the  bankrupt  after  said  date  are  null  and  void. — 
Decision  of  March  3,  1874- 

The  disqualification  of  the  bankrupt  to  administer  his  property  is  also  established 
by  article  878  of  the  Code  of  Commerce  in  force,  and  articles  880  and  881  of  the  same 
law  state'the  acts  performed  by  him  which  are  null  and  may  be  annulled. 

Article  1025  of  the  Code  of  Commerce  herein  referred  to  is  as  follows: 

"In  order  to  secure  a  declaration  of  bankruptcy  at  the  instance  of  a  legitimate 
creditor,  without  the  bankrupt  making  a  voluntary  statement,  it  is  indispensable 
that  he  first  prove  in  due  form  the  suspension  of  payments  by  the  debtor,  either  by 
havmg  generally  defaulted  in  the  payment  of  his  current  obligations,  or  by  his  flight 
or  concealment,  together  with  the  closing  of  his  offices  and  warehouses  without 
having  left  any  person  as  his  representative  in  charge  thereof,  and  of  the  evasion  of 
his  obligations." 

See  article  876  of  the  code  at  present  in  force. 

In  order  that  a  declaration  of  the  bankruptcy  of  a  general  copartnership  may  be 
extended  to  a  special  partner,  it  is  necessary  that  he  be  given  a  hearing. — Decision  of 
February  77,  1886. 

5190 17 


258  LAW    OF    CIVIL    PROCEDURE. 

ART.  1324.  If  the  bankrupt  should  oppose  the  ruling  upon  the  declara- 
tion of  bankruptcy  within  the  period  fixed  in  article  1028  of  the  Code 
of  Commerce,  a  separate  record  of  proceedings  shall  be  formed  thereon, 
beginning  with  the  petition  and  evidence  of  the  creditor,  and  a  certified 
copy  of  said  ruling. 

The  bankrupt  may,  in  view  of  this  data,  extend  the  bases  of  his  oppo- 
sition, and  for  this  purpose  the  record  shall  be  delivered  to  him  for  a 
period  of  three  days,  if  he  makes  a  request  therefor  in  his  written 
opposition.1 

ART.  1325.  The  opposition  and  its  extension,  if  made,  by  the  bank- 
rupt, shall  be  referred  to  the  creditor;  and  the  ruling  above  mentioned 
shall  also  contain  the  order  for  the  taking  of  evidence  in  this  issue  for 
a  period  of  twenty  days,  which  can  not  be  extended,  within  which 
period  both  parties  shall  be  allowed  to  make  the  allegations  and  intro- 
duce the  evidence  they  desire,  in  accordance  with  article  1031  of  the 
code.2 

ART.  1326.  The  creditors  jointly  opposing  the  rehearing  of  the 
decision  upon  the  bankruptcy,  shall  exercise  their  rights  upon  enter- 
ing their  appearance  in  the  proceedings  upon  the  issue,  without  there 
being  any  retrogression  therein. 

ART.  1327.  If  the  creditor  should  agree  to  the  petition  of  the  bank- 
rupt, the  judge  shall  order  a  rehearing  of  the  ruling  upon  the  declara- 
tion of  bankruptcy  at  the  first  session. 

The  same  shall  be  done  at  the  instance  of  the  bankrupt  in  accord- 
ance with  article  1032  of  the  Code,  if  the  said  petition  should  not  have 
been  opposed  within  the  eight  days  following  the  service  thereof  upon 
the  creditors.3 

lrrhe  text  of  article  1028  of  the  Code  of  Commerce  of  1829,  which  article  has  no 
equivalent  in  the  Code  at  present  in  force,  is  as  follows: 

''ART.  1028.  A  merchant  who  is  declared  in  a  state  of  bankruptcy  without  his  hav- 
ing made  a  statement  may  petition  for  a  review  of  such  declaration  within  eight  days 
after  its  publication,  without  prejudice  to  the  provisional  execution  of  the  orders 
issued  with  regard  to  the  person  and  property  of  the  bankrupt." 

2  The  provisions  of  this  article  of  the  Code  of  Commerce  have  not  been  included  in 
the  code  in  force.     The  text  thereof  is  as  follows: 

"ART.  1031.  The  hearing  of  said  issue  can  not  exceed  twenty  days,  during  which 
period  there  shall  be  received  the  proofs  which  may  be  presented  by  either  party, 
and  upon  the  expiration  of  said  period  it  shall  be  decided  according  to  Ihe  merits  of 
the  facts  presented,  the  appeals  interposed  against  the  decision  which  may  be  ren- 
dered being  allowed  for  review,  but  not  for  a  stay  of  proceedings." 

3  This  article,  which  also  has  no  equivalent  in  the  Code  of  Commerce  at  present  in 
force,  is  as  follows: 

"ART.  1032.  A  rehearing  may  also  be  ordered  before  the  expiration  of  the  afore- 
mentioned period  of  twenty  days,  if  the  creditor  who  petitioned  for  a  declaration  of 
bankruptcy  agrees  thereto,  or  if  he  or  another  legal  creditor  should  not  oppose  the 
same  within  the  eight  days  following  the  notice  of  the  service  which  may  be  made 
at  the  instance  of  the  bankrupt. ' ' 

In  order  that  a  rehearing  on  the  ruling  referred  to  in  the  article  we  annotate  may 


LAW    OF    CIVIL    PROCEDURE.  259 

ART.  1328.  After  the  period  for  the  taking  of  evidence  has  elapsed, 
the  procedure  prescribed  in  articles  754  et  seq.  of  this  law  shall  be 
observed. 

The  decision  rendered  may  be  appealed  from  for  a  review  but  not 
for  a  stay  of  proceedings,  according  to  the  provisions  of  article  1031 
of  the  Code  of  Commerce.1 

AKT.  1329.  If  the  declaration  of  bankruptcy  should  be  vacated,  the 
provisions  of  article  1165  of  this  law  relating  to  the  return  to  the  debtor 
of  his  property  and  papers,  and  to  revesting  him  in  his  good  will  and 
other  rights,  shall  be  observed. 

ART.  1330.  The  action  for  losses  and  damages,  which,  according  to 
article  1034  of  the  Code,  may  be  brought  by  the  bankrupt  against  a 
creditor  who  may  have  presented  a  petition  for  a  declaration  of  bank- 
ruptcy, or  who  shall  have  sustained  one,  through  fraud,  falsity,  or 
manifest  injustice,  shall  be  instituted  in  the  proceedings  for  a  rehear- 
ing, and  shall  be  heard  and  determined  according  to  the  procedure 
prescribed  for  declaratory  actions  of  greater  import.2 

ART.  1331.  The  judge  shall,  at  the  time  of  making  the  declaration 
of  bankruptcy,  appoint  a  registered  merchant  as  the  commissioner  of 
the  same,  and  shall  issue  the  other  orders  which  are  prescribed  by 
article  1044  of  the  code.3 


be  granted,  it  is  necessary  that  the  falsity  or  legal  insufficiency  of  the  matters  which 
served  as  a  basis  for  the  declaration  of  bankruptcy  be  proven,  and  furthermore,  that 
the  bankrupt  has  met  all  his  obligations  which  may  be  due. — Decision  of  March  24, 
1886. 

1  See  note  to  article  1325  of  this  law. 

*  Article  1034  of  the  Code  of  Commerce  herein  referred  to  is  as  follows: 

"Art.  1034.  The  declaration  of  bankruptcy  being  vacated  by  the  order  for  a  rehear- 
ing, it  shall  be  considered  as  not  having  been  made  and  shall  not  produce  any  legal 
effect  whatsoever.  The  merchant  against  whom  it  was  issued  may  institute  an  action 
to  recover  losses  and  damages,  if  there  should  have  been  fraud,  falsity,  or  manifest 
injustice." 

This  article  has  been  partly  replaced  by  article  885  of  the  Code  of  Commerce  in 
force. 

3This  article  is  as  follows: 

"ART.  1044.  When  a  court  of  first  instance  issues  a  declaration  of  bankruptcy,  the 
following  measures  shall  also  be  taken: 

"1.  The  appointment  of  a  registered  merchant  as  commissioner  of  bankruptcy  if 
there  should  be  such  merchant. 

"2.  The  detention  of  the  bankrupt  in  his  residence  if  he  at  once  gives  bail,  or 
otherwise  his  confinement  in  the  jail. 

"3.  The  judicial  seizure  of  all  the  belongings  of  the  bankrupt  and  of  the  books, 
papers,  and  documents  of  his  business. 

"4.  The  appointment  of  a  depositary  who  shall  be  a  person  in  whom  the  court  of 
first  instance  has  confidence,  who  shall  be  charged  with  the  preservation  of  all  the 
seized  property  of  the  debtor,  until  the  trustees  are  appointed. 

"5.  The  publication  of  the  bankruptcy  by  edicts  in  the  town  of  the  domicile  of 
the  bankrupt,  and  in  the  other  towns  where  he  may  have  commercial  establishments, 


260  LAW    OF    CIVIL    PROCEDURE. 

If  there  should  not  be  a  registered  merchant  competent  to  act  as 
commissioner  at  the  place  where  the  proceedings  are  being  held,  the 
judge  of  first  instance  shall  discharge  the  duties  which,  according  to 
article  1045  of  the  Code,  appertain  to  said  office,  excepting  those  men- 
tioned in  number  4  thereof,  and  other  duties  which  appertain  exclu- 
sively to  the  trustees  or  to  the  depositary  in  insolvency  proceedings.1 

AKT.  1332.  Without  prejudice  to  the  complaint  of  the  bankrupt 
against  the  declaration  of  bankruptcy,  as  soon  as  the  ruling  thereupon 
is  rendered,  the  commissioner  shall  be  informed  of  his  appointment  by 
means  of  an  official  communication  from  the  judge  of  first  instance, 
and  the  former  shall  proceed  to  take  possession  of  the  property  and 
papers  of  the  bankrupt  and  make  an  inventory  of  the  same  and  their 
deposit,  performing  all  this  in  accordance  with  the  provisions  con- 
tained in  articles  1046,  1047,  and  1048  of  said  Code.3 

ART.  1333.  For  the  arrest  of  the  bankrupt  a  warrant  shall  be  issued 
to  any  of  the  bailiffs  (alguaciles)  of  the  court,  in  accordance  with  the 

and  its  insertion  in  the  newspaper  of  the  place  or  of  the  province,  should  there  be 
one. 

"6.  The  detention  of  the  correspondence  of  the  bankrupt  for  the  purposes  and  in 
the  manner  prescribed  in  article  1058. 

"7.  The  calling  of  the  first  general  meeting  of  the  creditors  of  the  bankrupt." 

This  article  has  not  been  reproduced  in  the  Code  of  Commerce  in  force. 

xThe  article  of  the  Code  of  Commerce  herein  referred  to,  which  has  no  equivalent 
in  the  Code  in  force,  is  as  follows: 

"ART.  1045.  The  following  are  the  duties  of  the  commissioner  in  bankruptcy: 

"1.  To  authorize  all  the  acts  of  the  seizure  of  the  property  and  papers  relating  to 
the  business  and  traffic  of  the  bankrupt. 

' '  2.  To  take  the  necessary  provisional  steps  which  may  be  urgent  in  order  to  keep 
in  security  and  good  order  the  property  of  the  estate  until,  after  making  a  report  to 
the  court,  it  decides  wfyat  may  be  proper. 

"3.  To  preside  over  the  meetings  of  the  creditors  of  the  bankrupt  that  are  ordered 
by  the  court. 

"4.  To  make  an  examination  of  all  the  books,  documents,  and  papers  concerning 
the  business  of  the  bankrupt,  in  order  to  be  able  to  furnish  such  information  as  the 
court  may  call  for. 

"5.  To  oversee  all  the  transactions  of  the  depositary  and  of  the  trustees  of  the 
bankruptcy;  to  see  to  the  good  management  and  administration  of  its  belongings;  to 
hasten  the  proceedings  relative  to  the  liquidation  and  classification  of  the  credits, 
and  report  to  the  court  any  abuses  he  may  observe  in  any  of  these  matters. 

"6.  The  other  duties  which  are  specially  assigned  to  him  by  the  provisions  of  this 
Code." 

2 The  articles  of  the  Code  of  Commerce  herein  referred  to  are  as  follows: 

"ART.  1046.  The  seizure  of  the  property  and  of  the  commercial  papers  of  the  bank- 
rupt shall  take  place  in  the  following  manner: 

"1.  All  the  warehouses  and  deposits  of  merchandise  and  effects  of  the  bankrupt 
shall  be  closed  with  two  keys,  one  of  which  shall  remain  in  the  possession  of  the 
commissioner,  and  the  other  shall  be  given  to  the  depositary. 

' '  2.  The  same  shall  be  done  with  regard  to  the  office  or  counting  room  of  the  bank- 
rupt, the  number  and  condition  of  the  commercial  books  found  being  recorded,  and 
there  being  placed  on  each  of  them  immediately  following  the  last  entry  a  memo- 
randum of  the  written  pages  which  they  contain,  which  shall  be  signed  by  the  judge 


LAW    OF    CIVIL    PROCEDURE.  261 

provisions  of  the  second  paragraph  of  article  1044  of  the  Code  of 
Commerce,  by  virtue  of  which  the  bailiff  shall,  in  the  presence  of  the 
court  clerk,  require  said  bankrupt  to  furnish  bail  in  the  sum  which 
the  judge  may  have  fixed.  If  the  surety  offered  be  a  property  owner, 
or  if  he  should  give  a  mortgage  bond  or  cash  as  bail,  the  bankrupt 
shall  be  confined  to  his  residence;  otherwise  he  shall  be  taken  to  jail, 
the  proper  warrant  being  issued  to  the  warden  who  is  to  receive  him.1 

ART.  1334.  In  order  to  determine  the  amount  and  the  character  of 
the  bail,  the  obligations  of  the  surety,  and  the  manner  of  enforcing 
the  same,  in  a  proper  case,  the  provisions  of  the  Law  of  Criminal 
Procedure  with  regard  to  such  cases  shall  be  observed. 

ART.  1335.  The  court  clerk  shall  post  the  edicts  containing  the 
notice  of  the  bankruptcy,  and  a  memorandum  shall  be  made  in  the 
record  of  this  having  been  done,  with  a  statement  of  the  day  and  hour 
when  they  were  posted. 

and  by  the  court  clerk.  If  the  books  are  not  kept  with  the  formalities  prescribed  by 
the  Code,  the  said  officials  shall  rubricate  all  their  leaves. 

"The  bankrupt,  or  other  person  in  his  name  and  with  his  authority,  may  attend 
these  proceedings,  and,  if  he  should  request  it,  he  shall  be  given  a  third  key,  and 
shall  sign  and  rubricate  in  such  case  the  books  with  the  judge  and  the  court  clerk. 

"3.  At  the  time  of  the  seizure  of  the  office  an  inventory  shall  be  made  of  the 
money,  drafts,  bills  of  exchange,  and  other  documents  of  credit  belonging  to  the 
estate,  and  they  shall  be  placed  in  a  safe  having  two  keys,  the  usual  precautions  being 
taken  for  their  security  and  safe-keeping. 

"4.  The  personal  property  of  the  bankrupt  not  kept  in  a  warehouse  on  which  seals 
can  be  placed  and  the  live  stock  shall  be  turned  over  to  the  depositary  according  to 
inventory,  permitting  the  bankrupt  to  retain  the  furniture  and  clothing  of  daily  use 
which  the  commissioner  may  consider  reasonably  necessary. 

"5.  The  real  property  shall  be  placed  under  the  temporary  administration  of  the 
depositary,  who  shall  collect  its  fruits  and  products  and  shall  take  the  precautions 
necessary  in  order  to  avoid  any  malversation. 

"6.  With  regard  to  property  situated  beyond  the  town  of  the  domicile  of  the 
bankrupt,  the  same  proceedings  shall  be  had  in  the  towns  where  it  may  be,  sending 
for  this  purpose  the  necessary  advice  to  their  respective  judges. 

"If  the  holders  of  this  property  should  be  persons  of  means  and  well-known 
responsibility,  taking  into  account  the  value  thereof,  they  shall  be  appointed  depos- 
itaries of  said  property,  avoiding  the  expense  of  transferring  the  same  to  others. 

"ART.  1047.  When  the  bankruptcy  is  of  a  general  partnership,  the  seizure  of  prop- 
erty shall  include  the  property  of  all  the  copartners  who,  according  to  the  articles  of 
copartnership,  may  be  liable  for  the  results  of  the  transactions  of  the  association,  in 
the  manner  prescribed  in  the  foregoing  article. 

"ART.  1048.  The  commissioner,  with  the  attendance  of  the  depositary,  may  examine 
at  will  all  the  books  and  papers  of  the  bankrupt  without  taking  them  from  the  office, 
in  order  to  take  such  notes  and  information  as  may  be  necessary  for  the  discharge  of 
the  duties  pertaining  to  him. 

"The  bankrupt  may  attend  in  person  or  through  his  attorney  at  this  examination, 
for  which  purpose  he  shall  be  previously  advised  of  the  day  and  hour  it  is  to  take 
place." 

These  three  articles  have  no  equivalent  in  the  Code  of  Commerce  at  present  in 
force. 

1Seo  note  to  article  1381. 


262  LAW    OF    CIVIL    PROCEDURE. 

In  order  that  they  may  be  effective  in  the  other  towns  where  the 
bankrupt  may  have  commercial  establishment,  the  edicts  shall  be 
addressed  with  a  communication  to  the  proper  judicial  authority  in 
each  of  said  towns,  requiring  said  authorities  to  make  a  return  of  said 
official  communication  with  a  memorandum,  drafted  immediately  after 
said  communication,  to  the  effect  that  the  edicts  have  been  posted. 
After  said  communications  are  received  they  shall  be  attached  to  the 
record. 

In  addition  to  publishing  said  notices  in  the  official  newspapers 
of  the  town  or  province,  as  prescribed  in  subdivision  5  of  article  1044 
of  the  code,  they  shall  also  be  inserted  in  the  Gaceta  de  Madrid  when 
the  judge  considers  it  advisable,  in  view  of  the  circumstances  of  the 
bankruptcy. 

ART.  1336.  For  the  detention  of  the  correspondence  of  the  bank- 
rupt a  communication  shall  be  addressed  to  the  postmaster  directing 
him  to  place  said  mail  at  the  disposal  of  the  court. 

ART.  133T.  The  bankrupt,  his  attorney,  if  he  should  have  one,  or 
the  person  in  whose  charge  he  may  have  left  the  administration  of 
his  business,  if  he  should  have  absented  himself  before  the  declaration 
of  bankruptc}^,  shall  be  cited  by  a  single  order  (diligencia)  to  attend 
daily,  or  upon  the  days  which  ma}^  be  designated  at  the  place  and  hour 
fixed  by  the  commissioner  for  the  opening  of  his  correspondence. 

•Should  he  not  appear  at  the  hour  fixed  in  the  citation,  the  corre- 
spondence shall  be  opened  by  the  commissioner  and  the  depositary. 

ART.  1338.  The  petition  of  the  bankrupt  for  his  liberation,  for  his 
release  from  arrest,  or  for  his  safe  conduct,  shall  not  be  allowed  until 
the  commissioner  has  informed  the  judge  that  all  the  books,  documents, 
and  papers  relating  to  the  business  of  the  bankrupt  have  been  taken 
possession  of  and  examined. 

ART.  1339.  The  provisions  of  articles  1060  and  1061  of  the  Code  of 
Commerce  shall  be  observed  in  this  separate  record,  in  a  proper  case.1 

JThe  text  of  the  articles  herein  referred  to  of  the  Code  of  Commerce  is  as  follows: 

"ART.  1060.  If  the  bankrupt  on  stating  his  bankruptcy  has  not  presented  the  gen- 
eral balance  sheet  of  his  business,  as  prescribed  in  article  1018,  or  when  a  declaration 
of  bankruptcy  has  been  made  at  the  instance  of  his  creditors,  he  shall  be  ordered  to 
prepare  it  in  the  shortest  period  deemed  necessary,  which  shall  not  exceed  ten  days, 
being  allowed  for  this  purpose  to  consult  in  the  presence  of  the  commissioner  the 
books  and  papers  of  the  bankruptcy  which  he  may  require,  without  taking  them  from 
the  office. 

"ART.  1061.  If  in  case  of  the  absence,  incapacity,  or  negligence  of  the  bankrupt,  he 
should  not  prepare  the  general  balance  sheet  of  his  business,  the  court  of  first 
instance  shall  immediately  appoint  an  expert  merchant  to  prepare  the  same  within 
a  brief  and  peremptory  period,  which  can  not  exceed  fifteen  days,  and  for  this  pur- 
pose he  shall  be  furnished  the  books  and  papers  of  the  bankrupt  in  the  presence  of 
the  commissioner  and  in  the  office." 

These  articles  have  not  been  reproduced  in  the  Code  of  Commerce  at  present  in 
force. 


LAW    OF    CIVIL    PROCEDURE.  263 

ART.  1340.  The  commissioner  shall  file  in  court  the  statement  of  the 
creditors  of  the  bankrupt,  which  he  must  have  prepared  within  the 
three  days  following  the  declaration  of  bankruptcy,  and  in  view 
thereof,  and  taking  into  consideration  the  provisions  of  article  1062 
of  the  code,  as  amended  by  the  law  of  July  30,  1878,  the  day  shall  be 
fixed  for  the  holding  of  the  first  general  meeting,  the  creditors  being 
called  thereto  in  the  manner  prescribed  in  article  1063  of  said  code. 

If  there  should  be  creditors  whose  domicile  is  unknown,  they  shall 
be  cited  by  means  of  edicts  in  the  manner  prescribed  in  article  1195  of 
this  law.1 

ART.  1341.  The  citation  of  the  bankrupt  for  the  meeting  shall  be 
made  by  a  writ  in  the  manner  prescribed  by  the  respective  articles  of 
this  law. 

ART.  1342.  For  the  holding  of  the  general  meeting  of  creditors,  the 
separate  record  shall  be  delivered  to  the  commissioner,  together  with 
all  the  other  records  in  their  existing  condition,  and  they  shall  be 
kept  on  file  during  the  meeting,  in  order  that  the  creditors  may  at 
once  be  given  the  explanations  which  they  may  request  concerning  the 
results  of  all  the  proceedings  which  may  have  been  had  up  to  the  time 
of  the  meeting. 

ART.  1343.  The  commissioner  shall  examine  all  the  powers  of  attor- 
ney of  those  who  attend  the  meeting  on  behalf  of  other  persons,  and 
the  provisions  prescribed  by  article  1135  of  this  law  with  regard  to 
this  case  and  in  the  case  of  representatives  holding  more  than  one 
power  of  attorney,  shall  be  observed. 

1  The  articles  of  the  Code  of  Commerce  referred  to  in  this  article  are  as  follows: 

"ART.  1062.  The  day  for  holding  the  first  meeting  of  the  creditors  shall  be  fixed 
with  regard  to  the  time  that  is  absolutely  necessary,  in  order  that  the  creditors  within 
the  Kingdom  may  receive  the  notice  of  the  bankruptcy  and  may  name  persons  to 
represent  them  at  the  meetings.  In  no  case  can  the  holding  of  this  meeting  be  post- 
poned more  than  thirty  days  after  the  judicial  declaration  of  bankruptcy. 

"If  the  meeting  can  not  be  held,  for  any  reason  whatsoever,  on  the  day  appointed, 
the  first  day  possible  within  the  following  fifteen  days  shall  be  fixed,  the  same  being 
announced  by  a  simple  edict  posted  within  the  limits  of  the  court  in  order  that  the 
creditors  may  be  advised  thereof,  producing  the  same  effects  as  though  the  citation 
were  personal. 

"In  the  event  that  one  session  should  not  be  sufficient  for  the  purpose  of  the  meet- 
ing, it  shall  be  continued  on  the  following  days. 

"ART.  1063.  The  commissioner  shall  prepare,  in  the  three  days  following  the  dec- 
laration of  bankruptcy,  a  list  of  the  creditors  of  the  bankrupt  as  shown  by  the  balance 
sheet,  and  shall  call  them  to  a  general  meeting  by  a  circular  issued  for  the  purpose, 
which  shall  be  delivered  at  the  domiciles  of  those  who  reside  in  the  same  town  and 
shall  be  forwarded  by  the  first  mail  to  the  absent  ones.  A  memorandum  of  both 
these  proceedings  shall  be  made  upon  the  record. 

"If  the  bankrupt  has  presented  a  balance  sheet,  a  list  of  the  creditors  shall  be 
formed  as  shown  by  the  ledger,  who  should  be  individually  called,  and  if  there  should 
not  be  any  ledger,  according  to  the  other  books  and  papers  of  the  bankrupt  and  the 
information  which  he  or  his  employees  may  give." 

Those  articles  have  no  equivalent  in  the  present  code. 


264  LAW    OF    CIVIL    PROCEDURE. 

ART.  1344.  The  meeting  for  the  election  of  the  three  trustees  pre- 
scribed by  article  1068  of  the  code,  as  amended  by  the  law  of  July  30, 
1878,  shall  be  held  with  the  creditors  attending  the  same,  the  provisions 
of  articles  1067,  1069,  and  1070  of  the  said  code  being  observed,  as 
amended  by  the  law  mentioned.1 

After  the  two  votes  by  call  of  names  have  been  taken  as  prescribed 
by  article  1069,  a  detailed  statement  shall  be  drafted  thereof,  which 
shall  be  read  before  the  adjournment  of  the  meeting  and  shall  be 
signed  by  the  commissioner,  the  court  clerk,  the  attending  creditors, 
and  the  bankrupt,  or  by  the  person  who  may  have  represented  him 
thereat. 

ART.  1345.  The  appointment  of  trustees  may  be  objected  to  before 
the  judge,  within  the  period,  for  the  causes  and  in  the  manner  pre- 
scribed in  articles  1218  to  1222  of  this  law. 

ART.  1346.  When  by  reason  of  abuses  committed  by  the  trustees 
in  the  discharge  of  their  duties,  a  creditor  should  request  the  removal 
of  any  of  said  trustees,  the  judge  shall,  in  view  of  the  facts  upon  which 
the  creditor  bases  his  request  and  the  evidence  he  furnishes  thereupon, 
after  hearing  the  commissioner,  decide  what  he  may  deem  proper. 

The  same  action  shall  be  taken  if  the  commissioner  is  the  one  who 
requests  the  removal.  The  judge  shall  take  into  consideration  any 

xThe  articles  of  the  Code  of  Commerce  of  1829,  herein  referred  to,  which  have  no 
equivalent  in  the  code  at  present  in  force,  are  as  follows: 

"ART.  1067.  The  meeting  being  called  to  order  on  the  day  and  hour  fixed  for  the 
holding  thereof,  the  creditors  shall  be  advised  of  the  balance  sheet  and  of  the  report 
presented  by  the  bankrupt,  the  commissioner,  ex  officio  or  at  the  instance  of  any  of 
the  creditors,  at  once  making  all  the  comparisons  which  may  be  considered  necessary 
with  the  books  and  documents  of  the  bankruptcy  which  shall  be  on  hand.  The 
depositary  shall  also  present  to  the  meeting  a  detailed  account  as  to  the  assets.  He 
shall  also  prepare  and  present  an  account  of  the  collections  made  and  expenses 
incurred  to  date. 

"After  the  foregoing  formalities  have  been  fulfilled,  the  election  of  trustees  shall 
be  proceeded  with. 

"ART.  1068.  Three  trustees  shall  be  appointed  for  every  bankruptcy,  which  num- 
ber can  neither  be  increased  nor  reduced. 

"ART.  1069.  The  appointment  of  the  first  and  second  trustees  shall  be  made  in  the 
same  ballot  by  the  creditors  who  are  present  at  the  general  meeting,  those  being 
elected  who  have  received  the  votes  which  represent  the  larger  portion  of  the  capital. 

"The  appointment  of  the  third  trustee  shall  be  made  by  the  creditors  alone  whose 
votes  did  not  elect  the  first  two,  the  one  receiving  the  greater  number  of  votes  being 
elected. 

"The  voting  shall  be  by  call  of  names  and  shall  be  recorded  in  the  minutes  of  the 
meeting. 

"ART.  1070.  Any  creditor  of  the  bankrupt  may  be  elected  trustee  who  appears  as  a 
creditor  in  his  own  right  or  as  the  representative  of  another,  the  preference  being 
given  to  a  person  who  is,  or  has  been,  engaged  in  commerce.  The  persons  elected 
must  be  more  than  twenty-five  years  of  age  and  permanent  residents  of  the  town  in 
which  the  bankruptcy  occurred. 

"The  appointment  of  trustees  shall  be  of  individual  persons  and  not  collectively 
of  any  commercial  association." 


LAW    OF    CIVIL    PROCEDURE.  265 

reformation  deemed  by  him  proper  and  pertinent  to  the  allegations 
made  by  said  commissioner,  and  in  view  thereof  and  that  elicited  from 
the  administration  record,  shall  order  what  he  may  consider  most  con- 
ducive to  the  interests  of  the  bankruptcy. 

ART.  1347.  Orders  for  the  removal  of  trustees  for  reasons  which  do 
not  constitute  a  crime  (delito)  or  misdemeanor  (falta)  shall  be  con- 
sidered administrative,  and  shall  not  prejudice  the  character  and  repu- 
tation of  the  person  removed,  and  the  order  shall  be  carried  out  without 
any  remedy  whatsoever  being  allowed  thereagainst. 

SECTION  II. — Administration  of  the  bankruptcy. 

ART.  1348.  The  first  papers  of  the  record  relating  to  this  section 
shall  consist  of  a  certified  copy  of  the  ruling  of  the  declaration  of  bank- 
ruptcy, without  containing  any  other  act,  and  shall  be  followed  by  the 
inventory  to  be  made  of  all  the  property  of  the  bankrupt  located  in 
the  domicile  of  the  same,  in  accordance  with  subdivisions  3,  4,  and  5 
of  article  1046  of  the  code  of  commerce.1 

ART.  1349.  For  the  purpose  of  taking  possession,  making  the  inven- 
tory and  deposit  of  the  property  of  the  bankruptcy,  which  may  be 
situate  at  another  place,  the  proper  letters  rogatory  shall  be  issued  to 
the  respective  judges,  a  memorandum  thereof  being  made.  The  orig- 
inal proceedings  had  by  said  judges  in  consequence  thereof  shall  be 
returned  by  the  same,  and  after  they  have  been  received  they  shall  be 
attached  to  the  record. 

ART.  1350.  For  the  purpose  of  withdrawing  from  the  place  of  deposit 
or  safe  any  public  securities,  money,  drafts,  bills  of  exchange,  or  other 
credit  documents  belonging  to  the  estate  of  the  bankrupt,  a  formal 
order  of  the  commissioner  shall  be  necessary,  the  execution  of  which 
shall  be  recorded  by  a  memorandum  (diligencia),  which  shall  be  signed 
by  said  commissioner,  the  depositary,  and  the  court  clerk. 

ART.  1351.  The  same  formality  shall  be  observed  for  the  purpose  of 
depositing  funds  in  the  aforementioned  safe,  in  which  shall  be  kept 
only  such  funds  as  may  be  necessary  to  meet  the  expenses  of  the  bank- 
ruptcy proceedings,  the  balance  of  the  cash  and  public  securities  being 
deposited  in  the  establishment  authorized  by  the  Government  to  receive 
deposits  of  this  character. 

ART.  1352.  Permission  granted  by  the  commissioner  for  urgent  sales 
of  property  of  the  bankrupt,  or  for  the  indispensable  expenditures 
which  are  to  be  made  for  the  preservation  thereof,  must  also  appear 
in  a  formal  order  to  serve  as  a  voucher  for  the  depositary. 

ART.  1353.  Certificates  of  the  appointment  of  the  trustees,  their 
acceptance  and  their  oath  of  office,  shall  be  attached  to  this  record, 
there  being  at  once  ordered  the  making  of  the  general  inventory  and 

1  For  this  article  of  the  code  of  commerce  see  footnote  to  article  1382. 


266  LAW    OF    CIVIL    PROCEDURE. 

the  delivery  to  said  trustees  of  the  assets  and  papers  of  the  bankruptcy 
in  the  manner  prescribed  in  articles  1079, 1080,  and  1081  of  the  Code.1 

ART.  1354.  In  the  examination  of  and  the  objections  to  the  accounts 
presented  by  the  depositary,  the  order  prescribed  for  this  matter  in 
insolvency  proceedings  shall  be  observed  after  a  report  thereon  of  the 
commissioner. 

ART.  1355.  The  provisions  contained  in  said  insolvency  proceedings 
relating  to  the  necessary  expenditures  to  cover  the  demands  of  the 
bankruptcy  proceedings  shall  also  be  observed.  With  regard  to  the 
extraordinary  expenses  which  the  trustees  may  propose,  the  judge 
shall  not  authorize  them  unless  they  are  examined  and  classified  by 
the  commissioner  after  the  extrajudicial  investigation  which  he  may 
consider  proper  has  been  secured.  If  these  expenses  should  not  exceed 
1,250  pesetas  the  authorization  of  the  commissioner  shall  be  sufficient. 

ART.  1356.  For  the  appraisement  and  sale  of  the  estate  of  the  bank- 
rupt the  provisions  prescribed  by  articles  1084,  1085,  1086,  1087,  and 
1088  of  the  code  shall  be  observed,  according  to  the  different  kind  of 
commercial  effects,  and  other  personal  and  real  property.2 

1  The  articles  of  the  Code  of  Commerce  herein  referred  to,  which  have  no  equiva- 
lent in  the  Code  at  present  in  force,  are  the  following: 

"ART.  1079.  After  the  trustees  have  been  appointed  and  given  possession  of  their 
offices,  they  shall  proceed  to  make  a  general  and  formal  inventory  of  all  the  prop- 
erty, effects,  books,  documents,  and  papers  of  the  bankruptcy,  which  the  commis- 
sioner shall  authorize  with  his  attendance. 

"The  property  and  effects  which  maybe  in  the  hands  of  consignees,  or  which, 
for  any  other  reason  whatsoever,  may  be  in  another  town  than  that  in  which  the 
bankruptcy  occurred,  shall  be  included  in  the  inventory  in  accordance  with  the  bal- 
ance sheet,  books,  and  papers  of  the  bankrupt,  with  the  proper  memoranda,  accord- 
ing to  the  replies  which  may  have  been  received  from  their  holders  or  depositaries. 

'  'ART.  1080.  The  bankrupt  shall  be  cited  for  the  making  of  the  inventory,  and 
may  attend  the  making  of  the  same,  either  in  person  or  through  an  attorney. 

"ART.  1081.  After  the  inventory  has  been  made,  all  the  property,  effects,  and  papers 
included  therein  shall  be  delivered  to  the  trustees,  a  receipt  being  taken  therefor; 
the  commissioner  shall  write  the  necessary  communications  in  order  that  there  may 
be  placed  at  the  disposal  of  the  trustees  the  property  and  effects  which  may  be  in 
other  towns." 

2  The  text  of  these  articles  follows: 

' '  ART.  1084.  The  trustees,  taking  into  consideration  the  nature  of  the  commercial 
effects  of  the  bankrupt,  and  considering  the  greatest  possible  advantages  to  the  inter- 
ests of  the  same,  shall  propose  to  the  commissioner  the  sale  to  be  made  of  said  mer- 
chandise at  the  proper  time,  and  the  judge  shall  order  what  may  be  proper,  fixing 
the  minimum  price  at  which  the  sale  can  be  made,  which  can  not  be  changed  with- 
out good  cause  in  the  judgment  of  the  commissioner. 

"ART.  1085.  In  the  sale  of  the  commercial  effects  belonging  to  the  bankrupt  a 
broker  must  take  part,  and  where  there  is  no  broker  the  sale  shall  be  made  at  public 
auction,  announcing  the  same  at  least  three  days  in  advance  by  edicts  and  notices 
which  shall  be  published  in  a  newspaper,  should  there  be  any  in  the  town. 

"ART.  1086.  For  the  regulation  of  the  prices  at  which  the  commercial  effects  of  the 
bankrupt  are  to  be  sold  the  commissioner  shall  take  into  consideration  their  cost, 
according  to  the  invoice  of  purchase,  and  the  expenses  afterwards  incurred,  securing 


LAW    OF    CIVIL    PROCEDURE.  267 

ART.  1357.  All  the  creditors  of  the  bankruptcy,  and  the  bankrupt 
himself,  will  be  allowed  to  institute  the  action  permitted  b}^  article 
1089  of  the  Code  against  the  trustees  who  purchase  or  who  may  have 
purchased  any  of  the  property  of  the  estate  of  the  bankrupt.1 

Actions  of  this  character  shall  be  kept  in  a  separate  record,  and  shall 
be  heard  and  determined  in  accordance  with  the  procedure  prescribed 
for  incidental  issues,  and  without  prejudice  to  the  criminal  liability 
which  the  trustees  may  have  incurred. 

ART.  1358.  All  compromises  entered  into  by  the  trustees  in  pending 
causes  relating  to  the  interests  of  the  bankruptcy  shall  be  based  upon 
an  order  issued  by  the  judge  upon  the  recommendation  of  the  commis- 
sioner, in  which  the  bases  for  the  compromise  shall  be  fixed. 

ART.  1359.  In  a  separate  pamphlet  attached  to  this  record  a  state- 
ment shall  be  entered,  signed  by  the  commissioner  and  by  the  trus- 
tees, of  the  weekly  deposits  made  in  the  safe  of  the  amounts  collected, 
the  court  clerk  certifying  to  the  fact  that  said  deposit  was  made. 

A  similar  formality  shall  be  observed  for  the  withdrawal  of  the 
amounts  made  by  virtue  of  warrants  issued  by  the  said  commissioner 
and  of  those  deposited  in  the  public  establishment. 

ART.  1360.  The  commissioner  shall  be  informed  of  the  statements 
made  by  the  creditors  in  view  of  the  monthly  reports  which  the  trus- 
tees must  present  and  with  regard  to  the  state  of  the  administration 
of  the  bankruptcy,  and  in  view  of  the  report  of  the  commissioner  the 
judge  shall  issue  the  orders  which  he  may  consider  proper  to  the 
interest  of  all  parties  to  the  proceedings. 

ART.  1361.  The  orders  which  the  commissioner  may  issue  with  re- 
gard to  the  administration  of  the  bankruptcy  in  the  discharge  of  his 
duties  may  be  amended  by  the  judge,  at  the  instance  of  the  trustees  or 
of  any  of  the  persons  interested  therein,  in  which  cases  the  judge 

the  advance  over  the  current  price  of  goods  of  like  kind  and  quality  in  the  same 
commercial  center  which  may  be  possible. 

"If  it  should  be  necessary  to  make  a  price  lower  than  their  cost,  including  expenses, 
the  sale  of  the  goods  must  take  place  at  public  auction. 

"ART.  1087.  The  trustees  shall  appraise  the  personal  property  of  the  bankrupt 
which  does  not  consist  of  commercial  goods,  and  the  real  property,  for  which  pur- 
pose experts  shall  be  appointed  by  them  and  by  the  bankrupt,  or  by  the  commis- 
sioner, if  the  latter  does  not  do  so.  In  case  of  disagreement  the  court  shall  appoin' 
a  third  expert. 

"ART.  1088.  The  sale  of  the  real  property  and  of  the  personal  property,  excepting 
the  commercial  effects,  of  the  bankrupt  shall  take  place  at  a  public  auction  with  all 
the  formalities  of  law,  it  being  otherwise  null  and  void." 

TThis  article  of  the  Code  of  Commerce  of  1829  is  as  follows: 

"ART.  1089.  The  trustees  can  not  purchase  for  themselves,  nor  for  others,  the  prop- 
erty of  the  bankrupt,  whatever  may  be  its  kind,  and  if  they  should  do  so  in  their 
own  name,  or  in  the  name  of  another,  the  goods  so  acquired  shall  be  confiscated  for 
the  benefit  of  the  estate  of  the  bankrupt,  and  they  shall  be  obliged  to  pay  the  price 
thereof  if  they  have  not  already  done  so." 


2fi8  LAW    OF    CIVIL    PROCEDURE. 

shall  proceed  .summarily  in  view  of  the  request  which  may  bo  made 
and  the  report  of  the  commissioner  thereon. 

ART.  1362.  The  accounts  of  their  administration  rendered  by  the 
trustees  shall  also  be  attached  to  this  separate  record.  Said  accounts 
shall  be  examined  in  accordance  with  the  provisions  of  articles  1134 
and  1135  of  the  Code,  and  if  any  opposition  should  be  made  thereto, 
either  by  a  resolution  of  the  meeting  of  creditors  or  by  the  bankrupt 
or  any  individual  creditor,  this  opposition  shall  be  heard  and  deter- 
mined according  to  the  procedure  prescribed  for  an  ordinary  action, 
which  shall  be  instituted  in  this  separate  record,  if  all  the  proceed- 
ings concerning  the  administration  of  the  bankruptcy  should  have 
been  completed,  or  otherwise,  if  the  liquidation  thereof  should  not 
have  been  terminated,  in  a  separate  record. 

ART.  1363.  The  claims  of  the  creditors  or  of  the  bankrupt  against  the 
trustees  for  losses  and  damages  caused  to  the  parties  in  interest  by 
fraud,  malversation,  or  culpable  negligence,  shall  be  alleged,  heard, 
and  determined  in  a  separate  record,  dependent  upon  this  record,  the 
proceedings  prescribed  for  ordinary  actions  being  pursued. 

SECTION  III. — Retroactive  effects  of  a  bankruptcy. 

ART.  1364.  The  power  to  demand  the  retroaction  of  acts  which  the 
bankrupt  may  have  performed  at  improper  times  to  the  prejudice 
of  the  bankruptcy  proceedings,  or  which  may  be  annulled  on  account 
of  their  fradulent  character,  even  though  they  should  have  taken  place 
at  proper  times,  is  vested  in  the  trustees,  as  the  representatives  of  the 
creditors  and  the  legal  administrators  of  the  estate  of  the  bankrupt.1 

ART.  1365.  If  the  creditors  should  observe  any  omission  on  this 
point  they  shall  address  themselves  to  the  commissioner,  who,  in  view 
of  the  facts  of  the  case,  shall  order  such  measures  to  be  taken  as  may 
be  necessary  in  order  that  the  creditors  may  institute  the  actions  which 
they  may  consider  proper,  and  should  he  not  do  so  the  person  inter- 
ested may  complain  to  the  judge  of  the  bankruptcy. 

ART.  1366.  The  trustees  are  obliged  to  prepare,  within  ten  days 
after  the  books  and  papers  of  the  bankruptcy  have  been  delivered  to 
them,  the  following  statements: 

A  statement  of  the  payments  made  by  the  bankrupt  during  the 
fifteen  days  preceding  the  declaration  of  bankruptcy  on  account  of 
debts  and  direct  obligations  not  yet  due. 

1  An  undoubted  and  uncontroverted  fact  that  a  merchant  did  not  state  that  he  was 
a  bankrupt  and  present  the  proper  documents  within  three  days  after  having  sus- 
pended the  payment  of  his  obligations,  does  not  carry  with  it  the  impossibility  of 
declaring  by  virtue  of  other  proofs  that  the  insolvency  is  fortuitous;  but  it  prevents 
any  allowance  being  made  to  the  bankrupt  for  maintenance,  in  accordance  with  the 
provisions  of  article  1098. — Decision  of  July  14,  1888. 


LAW    OF    CIVIL    PROCEDURE.  269 

Another  of  the  contracts  entered  into  during  the  thirty  days  prior 
to  the  declaration  of  bankruptcy,  which,  by  reason  of  their  fraudulent 
character,  are  dejure  null  and  void  in  accordance  with  article  1039  of 
the  Code  of  Commerce,  and  of  the  donations,  inter  vivos,  which  are 
included  in  the  provisions  of  article  1040. l 

ART.  1367.  The  statements  referred  to  in  the  foregoing  article  shall 
be  verified  and  vised  by  the  commissioner,  after  which  the  trustees 
shall  address  extrajudicial  requests  to  the  persons  interested,  requesting 
them  to  refund  to  the  estate  such  property  as  may  belong  to  the  same; 
and  if  said  requests  should  be  of  no  effect,  the  trustees  shall  adopt  the 
legal  measures  which  may  be  proper  according  to  the  objects  of  each 
claim,  with  the  prior  authorization  of  the  commissioner. 

ART.  1368.  The  trustees  shall  also  make  another  statement  of  the 
contracts  entered  into  by  the  bankrupt  which  are  included  in  any  of 
the  four  cases  of  article  1041  of  the  Code,  making  the  proper  investi- 
gations in  order  to  convince  themselves  as  to  whether  any  fraud  was 
committed  in  their  execution  or  not;  and  if  there  should  be  any  evi- 
dence tending  to  show  that  fraud  was  committed  in  any  of  them,  they 
shall  make  a  detailed  report  thereon  to  the  commissioner,  who,  in  view 
thereof  and  of  the  results  of  the  investigations  he  may  personally 
make,  shall  grant  or  refuse  to  grant  authority  for  the  trustees  to 
institute  the  actions  which  they  may  have  recommended  in  said  report.2 

JThe  articles  of  the  Code  of  Commerce  of  1829  herein  referred  to  are  as  follows: 

"ART.  1039.  Contracts  entered  into  by  a  bankrupt  during  the  thirty  days  preceding 
his  bankruptcy  shall  be  considered  fraudulent  and  therefore  null  and  void,  provided 
they  are  of  the  following  kinds: 

"1.  All  transfers  of  real  estate  made  without  consideration. 

"2.  Dowry  grants  of  private  property  made  to  his  children. 

"3.  Assignments  and  transfers  of  real  property  made  in  the  payment  of  debts  not 
yet  due  at  the  time  of  the  declaration  of  bankruptcy. 

"4.  Conventional  mortgages  on  obligations  of  a  prior  date  which  do  not  have  this 
character  and  on  loans  of  money  or  merchandise,  the  delivery  of  which  had  not 
taken  place  at  the  time  of  contracting  the  obligation  before  a  notary  and  the  witnesses 
taking  part  therein.  (This  article  is  covered  by  article  880  of  the  code  at  present  in 
force.) 

"ART.  1040.  Gifts,  inter  vivos,  which  do  not  have  the  well-known  character  of  remu- 
nerations, which  have  taken  place  after  the  last  balance,  shall  be  included  in  the 
provisions  of  the  foregoing  article  if  it  should  show  liabilities  greater  than  the  assets 
of  the  bankrupt."  (This  article  is  also  included  in  the  provisions  of  article  880  of 
the  code  in  force.) 

2  The  article  herein  referred  to,  and  which  is  covered  by  article  881  of  the  Code  of 
Commerce  at  present  in  force,  is  as  follows: 

' '  ART.  1041.  The  following  may  be  annulled  at  the  instance  of  the  creditors  by  prov- 
ing that  the  bankrupt  acted  with  the  intention  of  defrauding  them  of  their  rights: 

"1.  The  alienation  for  a  valuable  consideration  of  real  property  made  in  the  month 
preceding  the  declaration  of  bankruptcy. 

"  2.  The  creation  of  dowries  or  acknowledgment  of  having  received  moneys  made 
by  a  merchant  npoiiHe  in  favor  of  the  other  spouse  in  the  six  months  preceding  the 
bankruptcy,  provided  they  do  not  consist  of  real  property  which  was  inherited  by 


270  LAW    OF    CIVIL    PROCEDURE. 

ART.  1369.  The  actions  instituted  by  the  trustees  in  accordance  with 
article  1038  of  the  Code  of  Commerce  shall  be  presented,  accompa- 
nied by  the  documentary  evidence  proving  the  fact  that  payment  was 
made  at  an  improper  time  and  that  the  obligation  did  not  reach  maturity 
until  after  the  declaration  of  bankruptcy.  In  a  necessary  case  the 
trustees  may  prepare  their  action  with  the  confession  in  court  of  the 
debtor.1 

ART.  1370.  The  complaint  of  the  trustees  and  the  documents  accom- 
panying the  same  shall  be  referred  to  the  defendant  for  a  period  of 
three  days,  within  which  period  he  shall  make  such  statements  as  he 
may  consider  proper. 

ART.  1371.  Should  the  debtor  not  make  answer  to  the  complaint,  or 
if  he  should  not  rebut  therein  the  evidence  of  the  trustees,  he  shall  be 
adjudged  to  return  the  property. 

ART.  1372.  If  in  view  of  the  answer  of  the  debtor  the  judge  should 
deem  it  proper  to  take  evidence  upon  the  matter,  he  shall  order  that 
it  be  submitted  for  a  period  of  eight  days,  which  can  not  be  extended, 
and  after  said  period  the  issue  shall  be  decided  according  to  the  pro- 
cedure prescribed  in  Articles  754  to  757  of  this  law. 

ART.  1373.  For  the  purpose  of  returning  to  the  estate  the  property 
withdrawn  therefrom  by  virtue  of  contracts  which  have  become  null 
and  void  dejure,  by  virtue  of  the  provisions  of  article  1039  of  the  Code 
of  Commerce,  summary  proceedings  for  the  recovery  thereof  shall  be 
instituted,  and  the  trustees  shall  prove  by  means  of  the  instrument  of 
the  contract  that  it  is  null  and  void  under  the  law.2 

ART.  1374.  Orders  issued  for  the  application  of  articles  1038, 1039, 
and  1040  of  the  Code  of  Commerce  shall  be  executed,  even  if  an  appeal 
be  taken  therefrom.3 

ART.  1375.  Actions  for  the  annulment  or  revocation  of  contracts 
entered  into  by  the  bankrupt  for  the  purpose  of  defrauding  his  cred- 

the  latter  from  his  or  her  ascendants,  or  acquired  or  possessed  previously  by  the 
spouse  in  whose  favor  the  assignment  of  the  dowry  or  receipt  of  moneys  was  made. 

''3.  'All  acknowledgments  of  the  receipt  of  money  or  of  instruments  as  evidence  of 
loans,  which,  having  been  made  six  months  before  the  bankruptcy,  in  a  public  instru- 
ment, are  not  proven  as  having  taken  place  by  means  of  a  notarial  statement;  or  if, 
after  having  been  made  in  a  private  instrument,  they  should  not  conform  to  the 
entries  in  the  books  of  the  contracting  parties. 

"4.  All  contracts,  obligations,  and  commercial  transactions  of  the  bankrupt  which 
are  not  prior  to  the  declaration  of  bankruptcy  by  ten  days  at  least." 

1  The  article  of  the  former  Code  of  Commerce  herein  referred  to,  and  which  is  cov- 
ered by  article  879  of  the  code  in  force,  reads  as  follows: 

"  ART.  1038.  The  amounts  which  the  bankrupt  may  have  paid  in  cash,  securities  or 
certificates  of  credit  in  the  fifteen  days  preceding  the  declaration  of  bankruptcy,  by 
reason  of  direct  debts  and  obligations,  which  fell  due  after  the  latter,  shall  be  returned 
to  the  assets  by  the  persons  who  received  the  same." 

2  For  article  of  Code  of  Commerce  referred  to,  see  note  to  Article  1366. 

3  See  notes  to  articles  1366  and  1369  for  the  articles  herein  referred  to. 


LAW    OF    CIVIL    PROCEDURE.  271 

itors,  shall  be  heard  and  determined  in  the  declaratory  action  which 
may  be  proper  in  view  of  the  amount  involved  and  in  the  court  which 
is  competent  to  take  cognizance  thereof. 

SECTION  IV. — Examination,    classification,  and  payment   of  credits 
against  the  estate  of  the  bankrupt. 

ART.  1376.  The  separate  record  corresponding  to  this  section  shall 
imence  with  the  general  statement  of  the  creditors  of  the  bankrupt, 
and  the  judge  shall  make  an  order  thereafter  fixing  the  period  within 
which  said  creditors  are  to  present  to  the  trustees  the  written  evidence 
of  their  credits,  and  the  day  on  which  the  meeting  is  to  be  held  for 
their  examination  and  acknowledgment,  these  periods  being  fixed  in 
accordance  with  the  provisions  of  article  1101  of  the  Code  of  Com- 
merce.1 

The  fact  of  the  transmission  of  this  order  to  the  creditors  shall  be 
included  in  the  record  by  means  of  a  communication  from  the  trustees 
to  the  commissioner;  and  that  said  order  has  been  made  public  by 
edicts  and  its  insertion  in  the  newspapers  by  an  entry  made  by  the 
clerk. 

ART.  1377.  The  consolidation  with  the  bankruptcy  proceedings  of 
actions  pending  or  which  may  be  instituted  against  the  estate  of  the 
bankrupt  shall  take  place  in  accordance  with  the  rules  prescribed  for 
such  cases  in  insolvency  proceedings. 

ART.  1378.  After  all  the  proceedings  prescribed  for  the  establish- 
ment and  examination  of  credits  in  articles  1102,  1103,  1104,  and  1105 
of  the  Code  of  Commerce,  have  taken  place,  if  any  of  the  creditors 
or  the  bankrupt  should  consider  themselves  injured  by  the  resolution 
of  the  meeting,  they  may  make  use  of  their  rights  before  the  court 
taking  cognizance  of  the  bankruptcy  proceeding,  within  the  period  of 
thirty  days,  which  can  not  be  extended.2 

1  This  article  of  the  Code  of  Commerce,  which  has  no  equivalent  in  the  code  in 
force,  is  as  follows: 

"ART.  1101.  The  judge  taking  cognizance  of  the  bankruptcy  proceedings,  as  soon 
as  the  trustees  are  appointed,  and  taking  into  consideration  the  amount  of  business, 
and  the  distances  at  which  the  creditors  are  respectively  residing,  shall  fix  the  period 
within  which  the  latter  must  present  to  said  trustees  the  written  evidence  of  their 
credits,  which  period  can  not  exceed  sixty  days. 

1 '  In  the  same  order  there  shall  also  be  fixed  the  day  on  which  the  meeting  for  the 
examination  and  acknowledgment  of  credits  is  to  be  held,  which  shall  be  the 
twelfth  day  after  the  day  on  which  the  period  for  the  presentation  of  documents 
expires. 

' '  The  trustees  shall  take  care  to  forward  this  order  to  all  the  creditors,  and  shall 
also  have  it  made  public  by  means  of  edicts,  also  inserted  in  the  newspapers,  should 
there  be  any  in  the  town  or  in  the  province." 

2 These  articles  of  the  Code  of  Commerce  are  as  follows: 

"ART.  1102.  The  creditors  are  obliged  to  deliver  to  the  trustees  the  written  evidence 
of  their  credits  within  the  period  of  time  fixed,  with  true  copies  thereof,  in  order 


272  LAW    OF    CIVIL    PROCEDURE. 

ART.  1379.  The  actions  instituted  by  the  creditors  with  regard  to  the 
acknowledgment  of  credits  or  with  reference  to  exceptions  taken  to 
their  classification  shall  be  governed  by  the  procedure  established  for 
insolvency  proceedings. 

SECTION  V. —  Classification  of  the  bankruptcy  and  discharge  of  the 

bankrupt. 

ART.  1380.  The  separate  record  corresponding  to  this  section  shall 
be  commenced  with  the  report  which  the  commissioner  is  obliged  to 
give  to  the  judge  of  first  instance,  upon  the  result  of  the  examination 
of  the  books  and  papers  of  the  bankrupt  with  regard  to  the  acts  which 
are  to  serve  as  a  basis  for  the  classification  of  the  bankruptcy,  in 
accordance  with  article  1138  of  the  Code  of  Commerce.1 


that  after  they  have  been  compared  by  the  trustees  and  found  correct,  they  may 
place  a  memorandum  at  the  foot  thereof  to  the  effect  that,  having  been  found  cor- 
rect, they  retain  the  originals  in  their  possession,  and  in  this  manner  return  the 
copies  to  the  persons  interested  for  the  protection  of  their  rights. 

"ART.  1103.  The  trustees,  as  they  receive  the  documents  from  the  creditors,  shall 
compare  them  with  the  books  and  papers  of  the  bankrupt  and  shall  make  a  separate 
report  on  every  credit  in  accordance  with  the  result  of  said  examination  and  other 
information  which  they  may  have. 

"ART.  1104.  Within  the  eight  days  following  the  expiration  of  the  period  for  the 
presentation  of  the  written  evidence  of  the  creditors,  the  trustees  shall  prepare  a 
general  statement  of  the  creditors  against  the  estate  who  may  have  appeared  at  the 
verification,  with  the  proper  reference  in  each  section  in  numerical  order  of  the 
document  presented  by  the  person  interested,  and  shall  transmit  the  same  to  the 
commissioner,  a  copy  being  given  to  the  bankrupt,  or  to  his  attorney  in  fact,  for  his 
information. 

"The  commissioner  shall  close  the  statement  of  the  credits,  and  in  consequence 
hereof  the  creditors  who  appear  subsequently  shall  be  considered  negligent. 

"ART.  1105.  After  the  creditors  have  met  on  the  day  fixed  for  the  meeting  for  the 
examination  and  acknowledgment  of  credits,  the  general  statement  of  said  credits, 
of  the  respective  documents  for  verification  and  the  report  of  the  trustees  on  each 
shall  be  read.  All  the  creditors  present  and  the  bankrupt  in  person  or  through  an 
an  attorney,  may  make  such  remarks  on  each  section  as  they  may  consider  proper. 
The  person  interested  in  the  credit,  or  his  representative,  shall  answer  in  the  man- 
ner he  may  deem  proper,  and  the  acknowledgment  or  rejection  of  each  credit  shall 
be  decided  by  a  majority  of  votes,  said  majority  consisting  of  one  over  one-half  the 
number  of  voters  who  represent  three-fifths  of  the  total  of  the  credits  held  among 
all  of  them. 

"The  resolution  of  the  meeting  does  not  impair  the  right  of  each  and  every  one 
of  the  creditors  of  the  bankruptcy;  of  the  person  interested  in  the  credit  disputed 
and  of  the  bankrupt,  if  they  consider  themselves  injured,  to  exercise  such  actions  at 
law  wyhich  they  may  consider  proper,  the  creditor  whose  credit  may  not  have  been 
acknowledged  being  in  the  meantime  deprived  of  taking  an  active  part  in  the  bank- 
ruptcy proceedings." 

JThe  text  of  the  article  herein  referred  to  is  as  follows: 

"ART.  1138.  In  order  to  classify  the  bankruptcy,  the  following  shall  be  taken  into 
consideration : 

"1.  The  conduct  of  the  bankrupt  in  the  fulfillment  of  the  obligations  imposed 
upon  him  by  articles  1017  and  1018. 


LAW    OF    CIVIL    PROCEDURE.  273 

ART.  1381.  The  trustees  shall,  within  fifteen  days  from  the  time  of 
their  appointment,  present  the  statement  referred  to  in  article  1140  of 
the  code,  which  shall  be  referred  with  the  record  to  the  deputy  public 
prosecutor  (promotor  fiscal}.1 

The  trustees  in  their  statement,  as  well  as  the  promoter  fiscal  in  his 
review,  shall  make  a  formal  petition  with  regard  to  the  classification 
of  the  bankruptcy,  and  after  being  attached  to  the  record,  it  shall 
be  referred  to  the  bankrupt  for  a  period  of  six  days  in  order  that  he 
may  make  answer  to  said  petition.2 

ART.  1382.  If  the  bankrupt  does  not  answer,  or  if  he  returns  the 
record  without  objecting  to  the  petition  of  the  trustees  or  of  the  pro- 
motor  fiscal,  the  judge  shall  order  that  the  record  be  brought  before 
him  and  shall  make  the  classification  which  he  may  consider  according  to 
law,  in  accordance  with  what  may  be  shown  by  the  separate  record 
and  the  declaration  of  bankruptcy,  which  shall  also  be  taken  into 
consideration. 

ART.  1383.  If  the  bankrupt  should  object  to  the  petition  of  the  trus- 
tees or  of  the  promotor  fiscal,  evidence  shall  be  taken  upon  the  matter 
and  the  proceedings  shall  be  continued  in  accordance  with  the  pro- 
cedure established  in  this  law  for  incidental  issues,  it  being  permissible 
to  extend  the  period  for  the  taking  of  evidence,  if  requested  by  the 
parties,  to  the  maximum  of  forty  days  prescribed  in  article  1142  of 
the  Code  of  Commerce.3 


"2.  The  result  appearing  from  the  balance  sheets  which  may  be  made  of  the  com- 
mercial status  of  the  bankrupt. 

' '  3.  The  condition  of  the  commercial  books. 

"4.  The  statement  to  be  submitted  by  the  bankrupt  with  regard  to  the  immediate 
and  direct  causes  of  the  bankruptcy,  or  what  may  appear  from  the  books,  documents, 
and  papers  of  the  bankrupt  as  to  the  true  reason  for  the  failure. 

"5.  The  merits  of  the  claims  which  may  be  made  against  the  bankrupt  and  his 
property  during  the  course  of  the  proceedings." 

This  article  has  no  equivalent  in  the  Code  of  Commerce  in  force. 

When  the  bankruptcy  is  not  classified,  the  fulfillment  of  the  agreements  made 
between  the  bankrupt  and  his  creditors  depends  upon  the  definite  result  of  the  sep- 
arate classification  proceedings,  excepting  in  the  case  mentioned  in  article  1145  of 
the  Code  of  Commerce:  It  is  necessary  to  suspend  the  approval  of  such  agreements 
if  the  trustees  of  the  bankruptcy  should  have  requested  a  declaration  of  fraudu- 
lent bankruptcy,  and  should  this  be  done,  such  agreements  shall  be  null  and  void. — 
Decision  of  March  18,  1865. 

1  The  following  is  the  text  of  the  article  herein  referred  to,  which  has  no  equiva- 
lent in  the  Code  of  Commerce  of  1885: 

"ART.  1140.  The  report  of  the  commissioner  and  the  statement  of  the  trustees 
shall  be  referred  to  the  promotor  fiscal  of  the  court,  in  order  that,  if  he  should  find 
that  a  crime  or  misdemanor  has  been  committed,  he  may  institute  proceedings  for 
the  punishment  thereof  in  accordance  with  law." 

2  Simulation  and  fraud  are  not  presumed.     Decision  of  March  16,  1883. 

3  Article  1142  of  the  Code  of  Commerce  herein  referred  to  is  as  follows: 

"In  case  of  objection  the  trustees  and  the  promotor  fiscal,  as  well  as  the  bankrupt, 
may  utilize  the  legal  means  of  evidence  in  order  to  prove  the  facts  which  they  may 
lui\  c  respectively  alleged.     The  period  within  which  to  submit  this  evidence  can  not 
exceed  forty  duy.s." 
5190 18 


274  LAW    OF    CIVIL    PROCEDURE. 

The  judgment  which  may  be  rendered  may  be  appealed  from  for  a 
review  and  for  a  stay  of  proceedings;  but,  nevertheless,  should  there 
be  any  provisions  relating  to  the  liberty  of  the  bankrupt,  they  shall 
be  carried  out. 

ART.  1384.  The  provisions  of  article  1143  of  the  Code  shall  be 
observed  for  the  judgment  and  its  execution.1 

If  the  classification  proceedings  should  show  reasons  to  classify  the 
bankruptcy  as  fraudulent,  or  that  property  has  been  concealed,  the 
judge  shall  order  a  transcript  made  of  what  maybe  necessary,  in  order 
to  institute  criminal  proceedings  against  the  bankrupt. 

There  shall  be  no  remedy  whatsoever  against  this  order. 2 

1  The  Code  of  Commerce  of  1885  has  no  equivalent  for  the  article  of  the  Code  of 
1829  herein  referred  to,  which  is  as  follows: 

"ART.  1143.  In  view  of  what  has  been  alleged  and  proven  by  the  trustees,  the 
promoter  fiscal,  and  the  bankrupt,  the  judge  shall  make  the  definite  classification  of 
the  bankruptcy  when  he  considers  it  of  the  first  or  second  class,  in  accordance  with 
articles  1003  and  1004,  and  shall  order  that  the  bankrupt  be  placed  at  liberty,  if  he 
should  still  be  under  arrest.  The  bankrupt,  the  trustees,  and  the  promoter  fiscal 
may  appeal  from  the  order,  which  appeal  shall  be  allowed  for  a  review  and  stay  of 
proceedings,  the  provisions,  nevertheless,  relating  to  the  liberty  of  the  bankrupt 
being  carried  out,  should  there  be  any  thereupon." 

2The  purpose  of  commercial  bookkeeping  which  is  established  in  the  Code  of  Com- 
merce in  its  second  book  (Title  3  of  Book  I  of  the  code  in  force,  articles  33  to  49)  is 
to  determine  exactly,  whenever  it  should  be  necessary,  the  condition  of  a  commer- 
cial establishment  with  regard  to  merchandise  as  well  as  money  and  securities,  and 
to  fix  the  assets  and  liabilities  by  means  of  % the  corresponding  general  balance,  a 
result  which  it  would  be  impossible  to  arrive  at  without  keeping  the  three  books 
specified  in  article  32  of  the  said  code  (33  of  the  code  in  force)  and  which,  according 
to  article  40  (art.  36  of  the  code  of  1885),  every  merchant  is  obliged  to  open;  there- 
fore a  noncompliance  with  the  provisions  of  this  article  may  give  rise  to  frauds  to 
the  prejudice  of  the  creditors  and,  what  is  still  more  serious,  of  credit  in  general, 
which  is  the  first  element  of  commerce  and  which  must  be  fully  guaranteed  by 
law,  in  order  that  it  may  not  be  impaired  in  any  manner  whatsoever.  All  the  pro- 
visions of  the  code  relating  to  bookkeeping  are  for  the  purpose  of  infusing  confidence 
and  closing  the  doors  to  fraud  and  insure  the  fulfillment  of  commercial  agreements. 
For  this  reason,  in  case  of  a  bankruptcy,  the  nonpresentation  of  the  books  gives  rise 
to  a  doubt  as  to  the  good  faith  of  the  bankrupt,  because  it  can  not  be  ascertained 
whether  property  or  securities  have  been  concealed  and  whether  there  have  been 
losses,  and  the  cause  thereof,  and  whether  in  the  statement  of  the  creditors  some  ficti- 
tious creditors  have  been  included  or  the  amounts  of  their  credits  altered. 

In  stating  in  the  code  as  a  sufficient  cause  for  the  declaration  of  a  bankruptcy  of  the 
fourth  class  that  books  have  not  been  kept,  it  must  be  understood  to  the  effect  that 
all  the  books  therein  mentioned  must  be  kept,  without  the  fact  that  some  of  them 
have  been  kept  altering  the  classification,  because  in  this  manner  the  object  which 
the  legislator  had  in  view  will  not  be  obtained  and  which  are  required  by  transac- 
tions of  trust  in  commerce  when  credit  is  made  use  of. — Decision  of  June  20,  1860. 

After  the  declaration  of  bankruptcy  has  been  made  and  it  has  been  classified  as 
fraudulent  of  the  fourth  class,  the  institution  of  criminal  proceedings  being  ordered, 
article  1007,  number  2,  1144  of  the  Code  of  Commerce  (890  and  896  of  the  one  in 
force),  and  the  one  we  annotate  must  be  fully  applied,  the  classification  of  the  fraud- 
ulent insolvency  being  of  the  exclusive  competency  of  the  adjudging  chamber, 
against  which  an  appeal  for  annulment  of  judgment  shall  not  be  allowed. — Decision 
of  June  2 4^  1881, 


LAW    OF    CIVIL    PROCEDURE.  275 

ART.  1385.  The  trustees  shall  not  perform  any  act,  as  such,  in  the 
criminal  proceedings  which  may  be  instituted  against  a  bankrupt  of 
the  third,  fourth,  or  fifth  class,  except  by  virtue  of  a  resolution  of  the 
general  meeting  of  creditors. 

Any  creditor  who  exercises  in  said  proceedings  any  of  the  causes  of 
action  appertaining  to  him  in  accordance  with  the  criminal  laws,  shall 
do  so  at  his  own  expense,  and  in  no  case  shall  he  have  any  claim  against 
the  estate  of  the  bankrupt  for  the  results  of  the  action. 

ART.  1386.  The  petitions  of  bankrupts  for  their  discharge  shall  be 
heard  and  determined,  after  the  conclusion  of  the  classification  pro- 
ceedings, in  the  same  record  of  said  classification  proceedings,  accord- 
ing to  the  provisions  of  Title  XI,  Book  IV,  of  the  Code  of  Commerce. 

As  soon  as  the  commissioner  renders  the  report  prescribed  in  article 
1173  of  the  said  code,  the  record  shall  be  transmitted  to  the  prmnotor 
fiscal,  in  order  that  he  ma}^  give  his  opinion  as  to  whether  the  dis- 
charge is  proper,  and  without  further  proceedings  the  judge  shall 
render  the  decision  which  he  may  deem  just,  in  accordance  with  said 
article.1 

The  decision  which  may  be  rendered  may  be  appealed  from  for  review 
and  for  a  stay  of  proceedings. 

SECTION  VI. — Settlements  between  creditors  and  the  bankrupt. 

ART.  1387.  In  accordance  with  the  provisions  of  article  1147  of  the 
Code  of  Commerce,  as  amended  by  the  law  of  July  30, 1878,  no  propo- 
sition for  settlement  between  the  bankrupt  and  his  creditors  shall  be 
admitted  which  is  presented  before  the  conclusion  of  the  examination 
and  acknowledgment  of  the  credits  and  before  the  classification  of  the 
bankruptcy  has  been  made.2 

1The  following  is  the  text  of  the  article  herein  mentioned: 

"ART.  1173.  To  the  petition  for  discharge  shall  be  attached  the  original  receipts 
showing  that  the  creditors  have  been  paid. 

"The  court  shall  charge  the  commissioner  to  make  an  examination  of  the  docu- 
ments submitted  by  the  bankrupt  and  of  all  the  data  relating  to  the  bankruptcy  pro- 
ceedings, and  report  as  to  whether  the  discharge  may  be  granted  in  accordance  with 
the  provisions  of  articles  1171  and  1172,  in  the  respective  cases.  Should  there  be  no 
difficulty,  he  shall  order  the  discharge,  or  otherwise  he  shall  refuse  it,  if  the  bank- 
rupt on  account  of  his  class  were  disqualified  to  obtain  it,  or  shall  suspend  it  if  some 
requisite  only  is  missing  which  may  be  corrected." 

A  portion  of  the  provisions  of  this  article  have  been  included  in  article  921  of  the 
code  in  force. 

2The  precepts  of  article  1147  have  been  copied  in  article  898  of  the  code  in  force. 
The  text  of  the  former  follows: 

"ART.  1147.  After  the  termination  of  the  proceedings  for  the  examination  and 
acknowledgment  of  credits,  and  after  the  bankruptcy  has  been  classified,  the  bank- 
rupt rnay  submit  propositions  for  settlements,  if  he  should  not  have  been  included 
in  the  third,  fourth,  or  fifth  class,  and  may  request  the  court  to  call  a  meeting  of  his 
creditors,  for  which  purpose  he  shall  attach  thereto  as  many  copies  of  said  proposals 


276  LAW    OF    CIVIL    PROCEDURE. 

ART.  1388.  As  soon  as  the  proceedings  reach  the  stage  indicated  in 
the  foregoing  article,  if  the  bankruptcy  should  not  have  been  classi- 
fied as  of  the  third,  fourth,  or  fifth  class,  the  judge  shall  grant  the 
petition  of  the  bankrupt  or  of  any  of  the  creditors,  praying  that  a 
meeting  be  called  to  treat  of  the  settlement. 

Said  petition  must  contain  the  requisites  mentioned  in  article  1302 
of  this  law. 

ART.  1389.  The  provisions  of  articles  1305  to  1309  of  this  law  may 
also  be  applied  to  these  proceedings. 

ART.  1390.  With  regard  to  the  holding  of  the  extraordinary  meet- 
ing to  discuss  the  settlement  and  of  objecting  to  its  resolutions,  the 
provisions  of  articles  1152  et  seq.  of  the  Code  of  Commerce  shall  be 
observed.1 

as  there  may  be  creditors,  in  order  that  they  may  be  transmitted  to  them  for  the 
examination." 

A  private  agreement  or  settlement  of  a  creditor  with  the  bankrupt,  which  is  declared 
null  and  void  by  article  1151  of  the  Code  of  Commerce  (899  of  the  code  in  forcej, 
cannot  be  confounded  with  the  formal  and  judicial  settlement  made  with  a  majority 
of  the  creditors  at  a  meeting,  and  with  the  formalities  required  by  commercial  law. — 
Decision  of  January  25.  1869. 

After  the  proposals  of  the  bankrupt  have  been  accepted  by  a  numerical  majority 
and  a  majority  of  the  liabilities  represented  by  the  creditors,  by  means  of  a  settle- 
ment made  with  the  same  in  accordance  with  articles  1147  and  1156  of  the  Code  of 
Commerce,  said  settlement  can  not  be  objected  to  unless  it  is  conclusively  proven  that 
one  or  more  of  the  four  causes  specially  mentioned  in  article  1157  is  present. — Deci- 
sion of  March  4,  1863. 

When  the  settlement  made  between  a  company  and  its  creditors  is  agreed  to  by  a 
legal  majority  of  the  partners  and  capital  represented,  their  resolution  shall  be  pub- 
lished, and  after  the  eight  days  prescribed  have  elapsed,  the  court  shall  approve  the 
same,  after  which  it  can  not  be  rendered  null  and  void,  unless  it  be  proven  that  bad 
faith  has  been  present  in  said  settlement,  or  the  attendance  of  any  of  the  vices  which 
annul  contracts  in  general,  or  any  of  the  four  causes  mentioned  in  article  1157  of  the 
code  (articles  902  and  903  of  the  code  in  force). — Decision  of  March  5,  1870. 

1  These  articles  are  as  follows:  . 

"ART.  1152.  Whenever  a  proposition  of  a  bankrupt  relating  to  a  settlement  is  to  be 
discusied  at  a  meeting  of  crediiors,  the  commissioner  must  previously  give  to  the 
creditors  present  exact  information  as  to  the  state  of  the  administration  of  the  estate 
of  the  bankrupt,  and  must  also  inform  them  of  what  has  taken  place  in  the  classifi- 
cation proceedings  to  that  date,  the  last  balance  sheet  which  may  be  had  also  being 
read. 

"ART.  1153.  The  propositions  of  the  bankrupt  shall  be  discussed  and  submitted  to 
vote,  a  resolution  being  adopted  by  the  vote  of  a  number  of  creditors  which  compose 
one  over  one-half  the  number  of  creditors  present,  provided  that  their  interest  in  the 
bankruptcy  covers  three-fifths  of  the  entire  liabilities  of  the  bankrupt. 

"ART.  1154.  The  wife  of  the  bankrupt  has  not  the  right  to  speak  in  the  delibera- 
tions upon  the  settlement. 

"ART.  1155.  The  creditors  of  the  bankruptcy  under  a  title  of  ownership  and  the 
mortgage  creditors  may  abstain  from  taking  part  in  the  resolution  of  the  meeting 
with  regard  to  the  settlement,  and  should  they  thus  abstain,  their  respective  rights 
shall  not  be  impaired. 

"If,  on  the  other  hand,  they  should  prefer  to  preserve  the  right  to  speak  and  vote 
upon  the  settlement  which  the  bankrupt  may  have  proposed,  they  shall  be  included 


LAW    OF    CIVIL    PBOCEDUEE.  277 

ART.  1391.  No  objection  shall  bo  allowed  on  the  part  of  the  creditors, 
who,  according  to  the  minutes  of  the  meeting",  appear  as  having  assented 
to  the  settlement. 

ART.  1392.  The  bankrupt  and  the  trustees  shall  be  heard  on  any 
objection  which  may  be  brought  by  the  dissenting  creditors,  or  by  those 
who  may  not  have  attended  the  meeting.  Evidence  upon  said  issue 
shall  be  taken  for  a  period  of  thirty  days,  which  can  not  be  extended, 
within  which  period  the  parties  litigant,  as  well  as  any  other  creditor 
who  may  subsequently  appear  and  join  in  the  objection,  may  make  such 
allegations  and  submit  such  evidence  which  they  may  consider  proper, 
after  the  opposite  parties  have  been  cited. 

ART.  1393.  After  the  period  for  the  admission  of  evidence  has  elapsed, 
the  provisions  of  articles  751  et  seq.  of  this  law  shall  be  observed. 

The  decision  rendered  may  be  appealed  from  for  review  but  not  for  a 
stay  of  proceedings,  and  shall  be  carried  out  between  the  debtor  and 
the  creditors  who  accept  the  settlement,  without  prejudice  to  what  may 
be  decided  in  the  second  instance,  as  prescribed  in  article  1158  of  the 
code,  as  amended  by  the  law  of  June  30,  1878. 1 

in  the  compromises  or  respites  which  the  meeting  may  consent  to  without  prejudice 
to  the  place  and  degree  appertaining  to  the  title  of  their  credit. 

"ART.  1156.  The  settlement  between  the  bankrupt  and  the  creditors  shall  .be  signed 
at  the  meeting  at  which  it  is  accepted,  under  the  penalty  of  nullity  and  the  liability 
of  the  court  clerk  who  authenticates  the  same,  and  said  settlement  shall  be  forwarded 
within  twenty-four  hours  thereafter  for  the  approval  of  the  judge  taking  cognizance 
of  the  bankruptcy  proceedings. 

"ART.  1157.  The  approval  of  the  settlement  can  not  be  ordered  until  eight  days 
have  elapsed  after  it  has  been  agreed  to,  within  which  period  the  dissenting  creditors, 
as  well  as  those  who  did  not  attend  the  meeting,  may  object  to  the  approval  thereof 
for  any  of  the  following  four  causes  and  for  no  other  reason  whatsoever: 

"1.  A  breach  in  the  forms  prescribed  for  calling,  holding,  and  the  deliberations  of 
the  meeting. 

"2.  Collusion  on  the  part  of  the  debtor  accepted  by  any  creditor  of  those  present 
at  the  meeting  to  vote  in  favor  of  the  settlement. 

"3.  Lack  of  legitimate  personal  capacity  in  any  of  those  who  may  have  contrib- 
uted with  their  vote  to  forming  a  majority. 

"4.  Fraudulent  exaggeration  of  a  credit  in  order  to  establish  the  interest  which 
those  who  adopt  the  resolution  must  have. 

"ART.  1158.  If  any  creditor  should  object  to  the  settlement,  said  objection  shall  be 
heard  and  determined  with  a  hearing  of  the  bankrupt  and  of  the  trustees  within  the 
peremptory  and  unextendible  period  of  thirty  days,  which  shall  be  common  for  the 
parties  to  allege  and  prove  what  they  may  deem  proper,  and  upon  the  expiration 
thereof  the  judge  shall  decide  as  he  may  deem  proper.  Appeals  taken  against  this 
order  shall  be  admitted  for  review  only,  which,  therefore,  shall  be  carried  out  between 
the  debtor  and  the  creditors  who  accept  the  settlement  without  prejudice  to  what 
may  be  decided  in  the  higher  courts. 

"ART.  1159.  Should  no  objection  be  made  to  the  settlement  within  the  legal  period, 
the  judge  shall  defer  his  approval,  unless  there  should  appear  manifest  contravention 
of  form  in  its  celebration  or  that  the  bankrupt  is  included  in  any  of  the  cases  men- 
tioned in  article  1148."  (This  article  has  been  partly  reproduced  in  article  904  of  the 
nxlc  in  force.) 

1  See  note  to  article  1390. 


278  LAW    OF    CIVIL    PKOCEDURE. 

ART.  1394.  If  within  the  period  of  eight  days  fixed  in  article  1 157 
of  the  code  no  objection  should  be  made  to  the  settlement,  the  judge 
shall  have  the  record  brought  before  him,  and,  in  view  of  the  records 
of  the  declaration  of  bankruptcy  and  its  classification,  he  shall  decide 
what  may  be  proper  in  accordance  with  article  1159  of  the  said  code.1 

TITLE  XIV. 

PROVISIONAL  SEIZURES  AND  SECURITY  OF  PROPERTY  IN  LITIGATION. 

SECTION  I. — Provisional  seizures* 

ART.  1395.  It  shall  be  the  duty  of  the  judges  of  first  instance  to 
order  provisional  seizures  when  requested  for  the  purpose  of  insuring 
the  payment  of  a  debt  exceeding  1,000  pesetas. 

If  the  debt  should  not  exceed  this  amount,  municipal  judges  may 
order  the  seizure,  if  it  should  be  requested  at  the  time  suit  is  instituted 
to  recover  the  payment  of  said  debt.3 

ART.  1396.  Notwithstanding  the  provisions  of  the  foregoing  article, 
in  cases  of  urgency,  even  though  the  debt  exceeds  1,000  pesetas,  the 
provisional  seizure  may  also  be  ordered  by  the  municipal  judge  of 
the  town  in  which  the  property  to  be  attached  is  situate,  as  pre- 
scribed in  rule  12  of  article  63;  but  as  soon  as  the  attachment  is 

1  For  the  articles  of  the  Code  of  Commerce  herein  mentioned,  see  note  to  article 
1390.     The  first  part  of  article  1157  is  reproduced  in  article  902  of  the  code  in  force 
and  the  balance  in  article  903,  but  with  the  addition  of  a  fifth  number. 

Rule  1  of  article  1157  of  the  Code  of  Commerce  cannot  be  considered  violated 
when  it  is  not  proven  that  there  has  been  any  breach  of  form  in  the  call,  holding, 
and  deliberations  of  a  meeting  of  creditors.  (Rule  5  of  article  903  of  the  code  in 
force). — Decision  of  January  25,  1868. 

2  The  law  authorizes  the  raising  of  questions  of  competency  in  proceedings  relating 
to  provisional  seizures,  as  it  determines  who  is  competent  to  take  cognizance  thereof, 
and  as  the  debtor  can  not  be  denied  the  right  to  be  a  legitimate  party  to  the  provi- 
sional seizure,  as  it  is  directed  against  his  property,  he  has  the  same  right,  in  accord- 
ance with  article  73,  to  interpose  an  inhibitory  plea  when  the  period  granted  by 
article  1416  within  which  to  object  to  said  provisional  seizure  has  not  elapsed.     This 
is  stated  in  a  decision  of  March  15,  1887,  which  at  the  same  time  laid  down  rules 
relating  to  the  competency  to  take  cognizance  of  provisional  seizures. 

3  Even  though  the  defendant  should  be  a  minor,  the  order  for  the  attachment  shall 
not  be  suspended. — Decision  of  May  IS,  1869. 

Orders  rendered  in  proceedings  relating  to  provisional  seizures  are  not  definite  for 
the  purposes  of  an  appeal  for  annulment  of  judgment,  because  they  do  not  terminate 
the  action. — Decision  of  November  25,  1876. 

Private  debts  which  a  municipality  may  have  in  its  favor  by  reason  of  due  and 
unpaid  installments  of  an  annuity  on  real  estate  (censo),  or  on  account  of  indebted- 
ness of  a  similar  character,  can  not  and  must  not  be  recovered  according  to  the  pro- 
cedure prescribed  in  the  instructions  of  December  3,  1880,  because  said  instructions 
only  determine  the  proceedings  to  be  employed  by  the  treasury  for  the  recovery  of 
taxes.  Therefore  the  seizures  and  sales  made  thereunder  by  municipalities  without 
instituting  an  action  before  the  ordinary  courts  are  null  and  void. — Decision  of  Febru- 
ary 19,  1889. 


LAW    OF    CIVIL    PROCEDURE.  279 

made,  he  shall  forward  the  proceedings  to  the  judge  of  first  instance, 
who  may  order,  at  the  instance  of  a  party,  the  correction  of  any  error 
which  may  have  been  committed. 

ART.  1397.  Provisional  seizures  may  be  made  for  debts  in  cash  as 
well  as  in  kind. 

In  the  second  case  the  plaintiff  shall,  under  his  liability,  for  the  pur- 
poses of  the  attachment,  fix  the  amount  in  cash  which  he  claims,  calcu- 
lated in  accordance  with  the  average  market  price  in  the  town,  without 
prejudice  to  subsequently  submitting  evidence  of  said  value  in  the 
proper  action. 

ART.  1398.  In  order  that  a  provisional  seizure  may  be  ordered  it 
shall  be  necessary — 

1.  That  documentary  evidence  of  the  existence  of  the  debt  be  pre- 
sented with  the  petition. 

2.  That  the  attachment  debtor  be  included  in  any  of  the  following 
cases : 

That  he  is  a  foreigner  not  naturalized  in  Spain. 

That  even  though  he  be  a  Spaniard  or  a  naturalized  foreigner,  he 
has  no  known  domicile  or  does  not  own  real  property,  or  does  not 
have  any  agricultural,  industrial,  or  commercial  establishment  at  the 
place  where  payment  of  the  debt  may  be  legally  demanded. 

That  although  he  may  not  be  included  in  the  circumstances  just 
mentioned,  he  has  disappeared  from  his  domicile  or  establishment 
without  leaving  any  person  at  the  head  thereof,  and  if  he  should  have 
left  some  one  in  charge,  said  person  ignores  his  residence,  or  that  he 
conceals  himself,  or  that  there  are  reasonable  grounds  to  believe 
that  he  will  conceal  or  undersell  his  property  to  the  prejudice  of  his 
creditors. 1 

ART.  1399.  If  the  title  presented  should  be  one  by  virtue  of  which 
an  execution  can  be  ordered  without  further  proceedings  (titulo 
ejecutivo),  the  provisional  seizure  may  be  at  once  ordered. 

Should  it  not  have  this  character  without  the  acknowledgment  of 
the  signature  of  the  debtor,  it  may  also  be  ordered  for  the  account 
and  at  the  risk  of  the  person  requesting  it. 

If  the  debtor  should  not  know  how  or  not  be  able  to  sign,  and 
another  should  have  done  so  at  his  request,  the  provisional  seizure 
may  also  be  ordered  at  the  expenses  and  risk  of  the  creditor,  provided 
that  the  former,  having  been  cited  twice  at  intervals  of  twenty-four 
hours  to  declare  under  a  not  decisory  oath  as  to  the  genuineness  of  the 

1  Orders  for  provisional  seizures  do  not  terminate  the  proceedings  and  therefore  an 
appeal  for  annulment  of  judgment  is  not  proper. — Decision  of  October  15,  1859. 

The  simple  fact,  without  further  data  or  information,  that  a  debtor  does  not 
acknowledge  his  signatures  nor  the  truth  of  the  debt,  is  not,  as  a  general  rule,  reason- 
ably sufficient  ground  to  believe  that  he  will  conceal  or  undersell  his  property  to  the 
prejudice  of  his  creditors. — Decision,  of  October  3,  1888. 


280  LAW    OF    CIVIL    PROCEDURE. 

documentary  evidence  of  the  claim,  he  should  not  appear  in  answer 
thereto. 

After  the  document  has  been  acknowledged,  even  though  the  debt 
should  be  denied,  the  seizure  may  be  ordered  in  the  manner  afore- 
mentioned.1 

ART.  1400.  In  the  cases  mentioned  in  the  last  three  paragraphs  of 
the  foregoing  article,  if  the  person  requesting  the  attachment  should 
not  be  of  well-known  responsibility,  the  judge  shall  require  him  to 
furnish  security  sufficient  to  answer  for  the  damages  and  costs  which 
may  be  suffered  or  incurred. 

This  security  may  be  of  any  of  the  kinds  allowed  by  law;  but  if  the 
judge  should  allow  a  personal  bond,  he  shall  do  so  under  his  liability.2 

ART.  1401.  If  the  judge  should  find  that  the  petition  of  the  creditor 
is  proper,  he  shall  order  the  provisional  seizure  as  speedily  as  the  case 
may  require,  and  it  shall  be  enforced  without  hearing  the  debtor  at  the 
time  nor  allowing  any  remedy  whatsoever. 

If  he  should  refuse  to  order  the  seizure,  the  creditor  may  interpose 
the  remedies  of  a  rehearing  and  an  appeal,  in  accordance  with  article 
376  and  379,  the  latter  being  allowed  both  for  a  review  and  for  a  stay 
of  proceedings. 

ART.  1402.  The  same  ruling  by  which  the  attachment  is  ordered 
shall  serve  as  a  mandate  to  the  bailiff  (alguacil)  and  court  clerk  who 
are  to  make  the  seizure. 

ART.  1403.  The  seizure  shall  not  be  made,  if,  at  the  time  of  making 
it,  the  person  against  whom  it  is  issued  should  pay,  deposit,  or  furnish 
security  for  the  amount  claimed. 

ART.  1404.  In  such  case,  the  attaching  officials  shall  suspend  all  pro- 
ceedings until  the  judge  of  first  instance,  or  the  municipal  judge,  in  a 
proper  case,  in  view  of  the  security  furnished,  determines  what  he 
may  deem  proper,  although  said  officials  shall  take  in  the  meantime, 
under  their  liability,  the  measures  which  may  be  proper  to  avoid  the 
concealment  of  property  and  any  other  abuse  which  may  be  committed. 

^his  article  has  been  amended  for  Cuba  by  civil  order  No.  141,  of  April  7, 1900, 
which  see  in  Appendix. 

When  a  provisional  seizure  is  vacated  on  account  of  the  nonattendanoe  of  any 
circumstances  which  authorize  the  same,  a  necessary  consequence  is  an  adjudication 
upon  costs  and  the  payment  of  losses  and  damages. — Decisions  of  October  15,  1859, 
and  April  24, 1876. 

A  ruling  denying  the  ratification  of  a  provisional  seizure  is  not  final  nor  does  it  put 
an  end  to  the  proceedings  or  make  its  continuation  impossible,  as  it  is  confined  to 
the  decision  of  an  incidental  issue,  the  purpose  of  which  is  to  take  a  precautionary 
measure  which  neither  gives  nor  takes  away  any  rights  to  the  property  in  litigation, 
and,  therefore,  an  appeal  for  annulment  of  judgment  against  such  rulings  can  not  be 
allowed. — Decision  of  December  23,  1876. 

2  This  article  has  also  been  amended  by  the  order  mentioned  in  the  note  to  the 
foregoing  article. 


LAW    OF    CIVIL    PEOCEDUEE.  281 

ART.  1405.  When  no  order  has  been  issued  to  the  effect  that  the 
attachment  be  confined  to  certain  things,  sufficient  property  shall  be 
seized  to  cover  the  amount  claimed,  the  order  established  in  article 
1445  for  executory  actions  being  observed. 

ART.  1406.  The  plaintiff  may  be  present  when  the  seizure  is  made, 
and  designate  the  property  of  the  debtor  upon  which  the  attachment 
is  to  be  levied  according  to  the  order  indicated  in  the  foregoing 
article. 

ART.  1407.  If  the  property  attached  should  be  real  property,  the 
attachment  shall  be  limited  to  the  issue  of  an  order  to  the  register  of 
property  to  make  the  proper  cautionaiy  notice  (anotacion preventive^. 

If  personal  property  or  live  stock  should  be  involved,  it  shall  be 
deposited  with  a  responsible  person;  if  cash  or  public  securities,  they 
shall  be  deposited  in  the  establishment  provided  therefor,  should  there 
be  any  in  the  town,  otherwise  they  shall  be  deposited  as  is  other  per- 
sonal property,  the  proper  guaranties  being  required  of  the  depositary, 
without  prejudice  to  transferring  the  same  to  said  establishment  within 
a  brief  period. 

ART.  1408.  If  the  attachment  should  have  been  levied  upon  property 
in  the  possession  of  a  third  person,  the  latter  shall  be  ordered  to  keep 
the  same  under  his  liability  at  the  disposal  of  the  court. 

Upon  the  same  day  notice  of  this  proceeding  shall  be  given  to  the 
attachment  debtor  if  he  should  reside  in  the  town  and  were  found  at 
his  domicile;  otherwise  he  shall  be  informed  thereof  b}'  a  writ  or  in 
the  manner  which  may  be  proper. 

ART.  1409.  A  person  who  has  requested  and  obtained  a  provisional 
seizure  for  an  amount  of  more  than  1,000  pesetas  must  request  the 
ratification  thereof  in  an  executory  action  or  in  the  declaratory  action 
which  may  be  proper,  filing  the  corresponding  complaint  within  twenty 
days  after  the  levying  of  the  attachment. 

Upon  the  expiration  of  this  period  without  the  action  having  been 
instituted  or  a  ratification  of  the  seizure  having  been  requested,  the 
latter  shall  be  null  dejure,  and  shall  be  without  effect  at  the  instance 
of  the  defendant  without  the  plaintiff  being  heard. 

A  petition  for  a  rehearing  may  be  made  against  this  ruling,  and  if  it 
should  not  be  granted,  an  appeal  for  a  stay  and  review  of  the  proceed- 
ings may  be  interposed.1 

1  If  the  ratification  of  a  provisional  seizure  should  be  requested  before  the  expira- 
tion of  twenty  days  it  shall  be  valid,  even  though  said  ratification  should  be  decreed 
after  the  expiration  of  this  period. — Decision  of  October  14,  1884. 

After  a  provisional  seizure  has  been  ratified  a  question  of  competency  can  not  be 
raised  with  regard  to  the  same,  because  it  is  a  closed  judicial  question. — Decision  of 
March  3,  1885. 

A  provisional  seizure  having  been  requested  and  obtained  at  the  expense  and  risk 
of  the  plaintiff,  and  said  seizure  being  declared  improper  by  a  final  judgment,  the 
plaintiff  must  be  adjudged  to  pay  the  costs,  because  in  the  payment  thereof  the 


282  LAW    OF    CIVIL    PROCEDURE. 

ART.  1410.  Notwithstanding  the  provisions  of  the  foregoing  article, 
if  the  debtor  should  be  included  in  any  of  the  cases  of  article  1398,  the 
provisional  seizure  may  also  be  ordered  after  the  institution  of  the 
action,  a  separate  record  being  made  thereof. 

The  provisions  contained  in  articles  1399  to  1410,  inclusive,  shall  be 
applicable  to  this  case,  and  after  the  attachment  has  been  levied  the  pro- 
ceedings thereupon  shall  be  continued  as  prescribed  for  incidental  issues. 

When  an  attachment  is  vacated  by  a  final  ruling,  because  it  is  not 
included  in  any  of  the  cases  of  said  article  1398,  the  plaintiff  shall  be 
taxed  all  the  costs  and  be  adjudged  to  indemnify  the  defendant  for  any 
losses  or  damages  he  may  have  suffered,  which  shall  be  recovered  in 
the  manner  prescribed  in  article  1415. l 

ART.  1411.  When  the  provisional  seizure  becomes  of  no  effect  by 
reason  of  its  having  become  null  dejure  in  accordance  with  article  1409, 
the  surety  shall  be  ordered  cancelled  in  the  same  ruling,  if  any  should 
have  been  furnished,  or  what  may  be  proper  shall  be  ordered  for 
vacating  the  attachment  and  cancelling  the  cautionary  notice,  in  a 
proper  case,  and  all  costs  shall  be  taxed  against  the  plaintiff,  who  shall 
also  be  adjudged  to  indemnify  the  defendants  for  any  losses  and  dam- 
ages he  may  have  incurred. 

If  the  attachment  should  be  vacated  for  any  other  reason,  the  ruling 
thereupon  shall  also  determine  what  may  be  proper  according  to  the 
cases  with  regard  to  cost  and  the  indemnification  of  losses  and  damages 
which  may  have  been  suffered.2 

defendants  would  suffer  damage  to  their  interests,  and  the  person  who  commits  an 
injury  must  not  only  make  good  the  damages  he  may  have  directly  caused,  but  also 
the  injury  which  may  be  a  consequence  of  his  action,  according  to  law  3,  Title  XV, 
Partida  7. — Decision  of  April  7,  1868. 

1  With  the  exception  of  the  cases  referred  to  in  article  1410  of  the  law  of  procedure, 
in  which  the  provisional  seizure  is  requested  after  the  main  action  has  been  instituted, 
the  competency  to  take  cognizance  of  said  seizures  must  be  determined  by  rule  12  of 
article  63  of  the  law;  that  is  to  say,  the  judge  competent  is  the  one  of  the  place  where 
the  property  to  be  attached  is  situated. — Decision  of  March  15,  1887. 

When  the  attachment  treated  of  in  a  demand  in  intervention  does  not  have  the 
character  of  a  provisional  seizure,  and,  furthermore,  was  not  levied  for  any  of  the 
causes  specifically  mentioned  in  articles  1410,  1413,  and  1416  of  the  law  of  civil  pro- 
cedure, said  articles  can  not  have  been  violated,  nor  can  they  be  cited  for  the  pur- 
poses of  an  appeal  for  annulment  of  judgment,  and  in  order  for  them  to  be  applicable 
it  would  be  necessary  for  the  creditor  to  have  demanded  the  attachment  of  the  prop- 
erty, knowing  that  it  was  not  the  property  of  the  debtor,  but  of  a  third  person. — 
Decision  of  May  27, 1889. 

2  A  decision  which  denies  the  ratification  of  a  provisional  seizure  is  not  definite  for 
the  purposes  of  an  annulment  of  judgment. — Decision  of  January  31, 1884. 

An  indemnification  for  losses  and  damages  is  not  proper  on  account  of  a  provisional 
seizure  when  the  indemnification  is  requested  after  the  debt  has  been  acknowledged 
and  the  proper  amount  paid,  and. therefore  the  annulment  of  the  judgment  is  not  proper 
on  account  of  the  fact  that  said  claim  has  been  denied. — Decision  of  March  10, 1885. 

A  judgment  ordering  the  raising  of  a  provisional  seizure  of  property  is  not 
definite. — Decision  of  May  4, 1885. 


LAW    OF    CIVIL    PROCEDURE.  283 

ART.  1412.  If  the  acknowledgment  of  a  signature  or  of  the  written 
evidence  of  a  debt  should  not  be  made  or  be  delayed  through  the  fault 
of  the  debtor,  and  if  the  filing  of  the  complaint  and  the  ratification  of 
the  attachment  should  depend  thereupon,  the  time  lost  in  obtaining 
said  acknowledgment  shall  not  be  included  in  the  period  of  time  pre- 
scribed in  article  1409. 

ART.  1413.  If  the  owner  of  the  property  seized  should  request  it, 
the  attachment  creditor  must  file  his  complaint  within  the  period  of 
ten  days,  unless  any  of  the  circumstances  mentioned  in  the  foregoing 
article  is  attendant.  Should  he  not  do  so,  the  attachment  shall  be 
vacated  and  the  costs,  losses,  and  damages  shall  be  taxed  against  him. 

ART.  1414.  After  the  provisional  seizure  has  been  levied,  the  debtor 
may  object  thereto  and  request  that  it  be  vacated,  with  indemnification 
of  losses  and  damages,  if  not  included  in  any  of  the  cases  of  article 
1398. 

He  may  make  this  petition  within  the  five  days  following  that  of 
the  notice  of  the  ruling  ratifying  the  seizure,  or  before  that  time,  if 
he  should  deem  it  proper,  and  it  shall  be  heard  and  determined  in  a 
separate  record  in  accordance  with  the  procedure  prescribed  for  inci- 
dental issues.1 

ART.  1415.  In  cases  in  which  there  is  an  adjudication  of  losses  and 
damages,  as  soon  as  the  ruling  thereupon  becomes  final,  they  shall  be 
recovered  according  to  the  procedure  established  in  articles  927  et  seq. 

ART.  1416.  In  the  case  of  the  second  paragraph  of  article  1395,  the 
municipal  judge  shall  order  the  provisional  seizure,  if  he  deems  it 
proper,  at  the  time  of  issuing  the  citation  for  the  oral  action,  and 
shall  ratify  or  vacate  it  in  the  judgment,  according  as  to  whether  he 
renders  judgment  for  or  against  the  defendant. 

If  he  renders  judgment  for  the  defendant,  all  the  costs  shall  be  taxed 
against  the  plaintiff. 

He  shall  also  adjudge  him  to  pay  the  losses  and  damages,  fixing  the 
amount  thereof,  if  the  defendant  should  have  requested  it  in  the  action. 

SECTION  II. — Security  of  property  in  litigation. 

ART.  1417.  A  person  who,  presenting  the  documentary  evidence  of 
his  rights,  institutes  an  action  for  the  ownership  of  mines,  of  wood- 
lands, the  principal  wealth  of  which  consists  in  the  timber,  of  planta- 
tions, or  of  industrial  and  manufacturing  establishments,  may  request 
that  judicial  intervention  be  ordered  in  the  administration  of  the 
property  in  litigation. 

ART.  1418.  After  the  action  referred  to  in  the  foregoing  article  has 
been  instituted,  the  judge,  after  ordering  a  separate  record  to  be 
made,  shall  at  once  cite  the  parties  to  appear  before  him  within  a 

1 A  judgment  denying  a  petition  to  vacate  an  attachment  is  not  definite. — 
of  Deri-mher  14,  1885,  and  January  26,  1886, 


284  LAW    OF    CIVIL    PROCEDURE. 

period  of  nine  days.  The  parties  appearing,  without  making  any  alle- 
gations with  regard  to  their  rights  in  the  action,  may  come  to  an  agree- 
ment as  to  the  person  to  be  appointed  receiver;  should  they  not  be 
able  to  reach  an  agreement,  the  plaintiff  shall  designate  four  persons 
from  which  the  defendant  shall  select  one,  and  if  he  should  not  do  so, 
the  person  who  pays  the  highest  quota  by  way  of  territorial  tax  shall 
be  appointed. 

ART.  1419.  Within  the  twenty-four  hours  following  the  appearance, 
the  judge  shall  render  a  ruling  declaring  whether  a  receivership  is  or 
is  not  necessary,  and  in  a  proper  case  appointing  the  receiver. 

If  the  intervention  is  ordered  the  receiver  shall  be  given  immediate 
possession,  the  defendant  being  ordered  to  abstain  from  all  acts  of 
management  of  the  estate  without  the  previous  permission  of  the 
receiver. 

AET.  1420.  Whenever  there  is  a  disagreement  between  the  receiver 
and  the  defendant  with  regard  to  any  administrative  act  which  the  lat- 
ter may  attempt,  the  judge  shall  cite  the  parties  to  appear  before  him 
and  shall  decide  what  he  may  deem  proper  after  hearing  them. 

ART.  1421.  The  defendant  at  any  stage  of  the  action  may  furnish 
security  in  order  that  the  intervention  may  cease.  After  the  proper 
petition  has  been  made,  the  judge  shall  order  that  an  expert  examina- 
tion of  the  property  be  made,  for  the  purpose  of  fixing  its  actual  value, 
and  to  what  extent  the  property  may  be  damaged  by  an  improper 
management  thereof. 

In  order  to  make  this  examination,  each  party  shall,  without  restric- 
tion, select  an  expert;  if  there  should  be  a  disagreement  and  neither 
of  the  persons  interested  should  request  the  selection  of  a  third  expert, 
the  judge,  in  accordance  with  the  higher  appraisement  of  the  property, 
shall  fix,  within  the  period  of  three  days,  the  security  to  be  given  by 
the  defendant  to  answer,  in  a  proper  case,  for  the  damages  which  the 
thing  in  litigation  may  suffer  during  the  pendency  of  the  proceedings. 

If  the  selection  of  a  third  expert  should  be  requested,  it  shall  be 
made  in  accordance  with  the  provisions  of  articles  615  et  seq. 

ART.  1422.  The  security  may  be  of  any  of  the  kinds  allowed  by  law, 
but  with  regard  to  any  personal  or  mortgage  bond  which  may  be 
offered,  the  plaintiff  must  be  heard  thereupon,  and  the  evidence  which 
he  may  offer  with  regard  to  the  insolvency  of  the  surety  or  as  to  the 
insufficiency  of  the  mortgage,  must  be  admitted  in  an  oral  action,  as 
well  as  such  contradictory  evidence  offered  by  the  defendant  as  may  be 
pertinent  to  the  matter. 

The  judge  shall  render  judgment  in  this  action  within  three  days, 
which  judgment  may  be  appealed  from  for  a  review  as  well  as  for  a  stay 
of  proceedings. 

ART.  1423.  A  bond  in  cash  or  securities  shall  be  constituted  by 
depositing  in  the  public  establishment  provided  therefor  the  amount 
which  the  judge  may  have  fixed. 


LAW    OF    CIVIL    PROCEDURE.  285 

ART.  1424.  After  the  security  has  been  furnished,  the  appointment  of 
the  receiver  shall  be  canceled  and  he  shall  be  immediately  required  to 
cease  in  the  discharge  of  his  duties. 

ART.  14:25.  Every  resolution  vacating  the  intervention  or  canceling 
the  security  furnished  shall  contain  the  proper  order  with  regard  to 
costs  and  indemnification  of  losses  and  damages.  The  provisions  of 
article  1415  shall  be  observed  for  the  recovery  of  the  latter. 

ART.  1426.  If  any  of  the  documents  included  in  the  first  three  sub- 
divisions of  the  following  article  are  presented  in  an  action,  from  which 
an  obligation  to  do  or  to  abstain  from  doing  something  or  to  deliver 
specific  things  is  clearly  apparent,  the  judge  may,  at  the  instance  and 
under  the  liability  of  the  plaintiff,  adopt  the  measures  which,  according 
to  the  circumstances,  may  be  necessary  to  secure  the  enforcement  of 
the  judgment  which  may  be  rendered  in  the  action. 

If  the  person  requesting  said  measures  is  not  known  to  be  sufficiently 
.solvent,  the  judge  shall  require  him  to  previously  furnish  security 
sufficient  to  answer  for  the  indemnification  of  any  losses  and  damages 
which  may  be  suffered. 


TITLE  XV. 

EXECUTORY  ACTIONS.1 

SECTION  I. — Executory  process. 

ART.  1427.  An  executory  action  must  be  based  upon  an  act  import- 
ing a  confession  of  judgment. 

The  following  instruments  only  import  a  confession  of  judgment: 

1.  A  public  instrument,  provided  that  it  is  a  first  copy,  or,  if  it  is  a 
second  copy,  that  it  has  been  issued  by  virtue  of  a  judicial  mandate 
and  with  a  citation  of  the  person  it  is  to  prejudice,  or  of  his  predeces- 
sor in  interest. 

2.  Any  private  document  which  has  been  acknowledged  under  oath 
before  the  judge  competent  to  issue  the  execution. 

3.  The  confession  made  before  a  competent  judge. 

4.  Bills  of  exchange,  without  the  necessity  of  a  judicial  acknowledg- 
ment thereof  by  an  acceptor  who  did  not  qualify  the  acceptance  as 
false  at  the  time  of  the  protest  of  the  bill  of  exchange  for  nonpayment. 

5.  Any  commercial  paper  payable  to  order  or  to  bearer,  represent- 
ing obligations  past  due,  and  the  due  coupons  thereof,  provided  that 
said  coupons  correspond  to  the  bonds,  and  the  latter  to  the  stub  books 
from  which  they  have  been  detached. 

1  See  note  to  article  164. 


286  LAW    OF    CIVIL    PKOCEDUKE. 

Should  this  be  apparent,  a  protest  to  the  effect  that  the  instrument 
is  false,  made  at  once  by  the  director  or  by  the  person  representing 
the  debtor,  shall  not  be  an  obstacle  to  the  issue  of  the  execution,  but 
the  falsity  may  be  pleaded  as  one  of  the  exceptions  in  the  action. 

6.  The  original  policies  of  contracts  made  through  an  exchange 
agent  or  public  broker,  signed  by  the  contracting  parties  and  by  the 
agent  or  broker  who  took  part  therein,  provided  that  they  are  veri- 
fied, by  virtue  of  a  judicial  mandate  and  with  a  citation  of  the  oppo- 
site parties,  with  the  register  of  said  agent  or  broker,  and  that  the 
said  register  is  kept  in  accordance  with  law.1 

ART.  1428.  When  an  executory  action  is  based  upon  a  private  docu- 
ment, a  request  may  be  made  that  the  debtor  acknowledge  his  signa- 
ture, and  the  judge  shall  consent  thereto,  fixing  a  day  upon  which  he 
shall  appear  therefor. 

ART.  1429.  If  the  debtor  should  not  appear  to  acknowledge  his  sig- 
nature, he  shall  be  cited  a  second  time,  with  a  warning  that  if  he  does 
not  appear  his  nonappearance  shall  be  considered  as  a  confession  of 
the  authenticity  of  the  signature  for  the  purposes  of  the  execution;  in 
such  case  the  execution  shall  issue,  provided  that  a  protest  or  demand 
for  payment  by  a  notarial  instrument  or  in  proceedings  to  avoid  liti- 
gation (acto  de  conciliation)  has  previously  been  made,  and  that  the 
falsity  of  the  signature  has  not  been  alleged. 

With  the  exception  of  these  cases,  the  creditor  may  request  and  the 
judge  shall  order  that  the  debtor  be  cited  for  a  third  and  last  time, 
with  a  warning  that  if  he  should  not  appear  he  shall  be  considered  to 
have  acknowledged  the  same;  and  if  he  does  not  appear,  nor  allege 
good  reasons  for  his  nonappearance,  he  shall  be  considered  to  have 
confessed  judgment  for  the  purpose  of  the  issue  of  the  execution,  at 
the  instance  of  the  opposite  party. 

A  person  who  states  that  he  is  not  certain  whether  the  signature  is 
or  is  not  his,  shall  be  interrogated  by  the  judge  with  regard  to  the  cer- 
tainty of  the  doubt.  If  he  should  acknowledge  it,  the  execution  shall 

1  The  provisions  contained  in  subdivision  4  of  this  article  are  fully  confirmed  by 
the  second  paragraph  of  article  521  of  the  Code  of  Commerce  in  force,  the  text  of 
which,  as  well  as  that  of  articles  522  and  523,  is  intimately  related  with  executory 
proceedings  in  general,  and  with  the  contents  of  the  article  annotated  especially. 

The  obligation  of  the  husband  to  pay  court  expenses  can  not  be  enforced  except 
in  the  direct  manner  prescribed  by  law,  and  not  in  the  irregular  form  of  executory 
proceedings  against  the  wife. — Decision  of  November  2,  1883. 

The  efficiency  of  public  documents  presented  in  support  of  a  petition  for  an  execu- 
tion may  be  impugned  and  their  verification  requested. — Decision  of  June  S,  1866. 

For  a  clear  understanding  of  the  provisions  of  this  article  the  modifications  which 
the  code  in  force  has  introduced  in  insurance  matters  must  be  taken  into  considera- 
tion, because,  as  the  code  of  1829  only  treats  of  insurance  of  land  transportation, 
the  provisions  of  this  number  must  be  considered  in  conjunction  therewith.  (See 
articles  380  to  438  of  the  Code  of  Commerce  in  force. ) 


LAW    OF    CIVIL    PROCEDURE.  287 

be  ordered  issued,  and  otherwise  the  provisions  of  article  1431  shall  be 
observed.1 

ART.  1430.  If  a  sworn  confession  is  demanded  of  the  debtor  with 
regard  to  the  genuineness  of  the  debt  for  the  purpose  of  issuing  the 
execution,  the  judge  shall  order  that  it  be  made,  and  shall  fix  a  day 
and  hour  for  the  appearance. 

In  such  case  the  debtor  must  be  in  the  town  when  he  is  cited,  and 
the  citation  must  be  personal.  The  amount  claimed  and  the  object  of 
and  consideration  for  the  claim  shall  be  stated  in  the  writ  of  citation. 

If  the  debtor  should  not  be  found  at  his  residence,  the  writ  shall  be 
served  upon  the  nearest  relative  found  in  the  house,  but  not  upon  the 
other  persons  mentioned  in  article  268. 

If,  after  three  citations  have  been  made  with  the  admonition  men- 
tioned in  the  foregoing  article  and  with  the  requisites  prescribed  in 
the  two  preceding  paragraphs,  the  debtor  should  not  appear  nor  allege 
a  good  reason  preventing  him  therefrom,  he  shall  be  considered  to 
have  acknowledged  the  genuineness  of  the  debt  for  the  purposes  of 
the  execution,  which  shall  be  issued,  if  requested  by  the  plaintiff.2 

ART.  1431.  After  the  signature  has  been  acknowledged,  the  execu- 
tion shall  issue,  even  though  the  debt  be  denied. 

If  the  signature  should  not  be  acknowledged,  as  well  as  in  case  the 
debt  is  denied,  the  creditor  may  enforce  his  rights  only  in  the  declara- 
tory action  which  may  be  proper  in  view  of  the  amount  involved,  if  a 
judicial  confession  has  been  demanded. 

ART.  1432.  A  confession  made  in  an  ordinary  action,  in  the  exami- 
nation of  a  defendant  after  the  complaint  has  been  answered,  does  not 
constitute  an  instrument  importing  a  confession  of  judgment,  nor  can 
an  executory  action  be  instituted  by  virtue  thereof  and  the  declaratory 
action  be  abandoned. 

1  Article  509  of  the  Code  of  Commerce  in  force,  confirming  the  precepts  of  article 
502,  which  states  that  the  nonacceptance  or  nonpayment  of  bills  of  exchange  must  be 
proven  by  means  of  a  protest,  prescribes  that  no  instrument  or  document  shall  supply 
the  omission  or  absence  of  the  protest  for  the  purpose  of  preserving  the  actions  which 
appertain  to  the  holder  against  the  persons  liable  for  the  results  of  the  draft.     See 
articles  502  to  510  of  the  said  Code  of  Commerce  for  the  provisions  relating  to  protests. 

A  decision  rendered  in  proceedings  preliminary  to  the  institution  of  an  executory 
action  is  not  final. — Decision  of  May  31,  1870. 

2  Orders  rendered  in  purely  preliminary  proceedings  for  the  hearing  of  an  execu- 
tory action,  are  not  final  for  the  purposes  of  an  appeal  for  annulment  of  judgment, 
because  they  do  not  prevent  the  institution,  hearing,  and  determination  thereof  in 
accordance  to  law,  nor  do  they  prevent  said  appeal  for  annulment  to  be  taken  subse- 
quently and  at  the  proper  time. — Decision  of  January  28,  1870. 

After  the  debtor  has  been  cited  three  times  to  appear,  without  result,  for  the  pur- 
pose of  appearing  in  court  and  declaring  under  oath,  not  decisory,  upon  the  genuine- 
ness of  the  debt,  a  resolution  which  considers  him  to  have  acknowledged  the  debt  is 
proper,  provided  that  the  formalities  prescribed  in  articles  943  and  22  and  23  of  the 
Law  of  Civil  Procedure  have  been  observed,  and  without  the  absence  of  the  person 
cited  in  a  foreign  country  having  been  stated  in  the  citations. — Decision  of  April  19, 
1880. 


288  LAW    OF    CIVIL    PROCEDURE. 

ART.  1433.  Execution  can  only  be  issued — 

1.  For  a  net  amount  in  cash  exceeding  1,000  pesetas. 

2.  For  a  net  amount  in  kind,  computed  in  cash,  provided  that  the 
value  thereof  exceeds  1,000  pesetas. 

In  either  case  it  shall  be  necessary  that  the  obligation  be  past  due.1 

ART.  1434.  When  the  debt  is  payable  in  kind,  with  property  which 
can  be  counted,  weighed,  or  measured,  the  computation  in  cash  shall 
be  made  at  the  price  agreed  upon  in  the  obligation,  and  otherwise 
according  to  the  average  market  price  of  such  propert}T  certified  to  by 
the  directors  of  the  college  of  brokers,  should  there  be  one  in  the 
town,  and  otherwise  by  the  proper  municipal  authority,  the  right  of 
the  debtor  being  retained  to  demand  a  reduction  of  the  said  price  at 
the  time  opposition  is  made  by  him  to  the  execution,  by  showing  that 
it  is  excessive. 

The  plaintiff  must  present  said  petition,  attaching  the  same  to  the 
complaint.2 

ART.  1435.  When  the  debt  is  payable  in  merchandise,  the  cash 
value  thereof  shall  be  computed  according  to  its  market  price  by  vir- 
tue of  a  certificate*  of  the  directors  of  the  college  of  brokers,  should 
there  be  any,  and  otherwise  by  a  certificate  of  two  brokers  or  mer- 
chants, the  debtor  retaining  his  right  to  demand  a  reduction  if  the 
computation  is  excessive,  as  provided  for  in  the  foregoing  article. 

ART.  1436.  If  the  debt  should  be  payable  in  public  securities  or  any 
other  negotiable  paper  admitted  in  the  stock  exchange,  the  cash  value 
thereof  shall  be  computed  according  to  the  quotation  on  the  day  the 
obligation  falls  due. 

ART.  1437.  The  complaint  in  an  executory  action  shall  be  prepared 
in  the  manner  prescribed  for  ordinary  actions  in  article  523,  and  shall 
furthermore  contain  a  promise  to  pay  all  legitimate  expenses. 

Copies  of  the  same  shall  be  attached,  as  well  as  of  the  documents,  for 
delivery  to  the  debtor  when  he  is  notified  that  the  property  attached 
is  to  be  sold.3 

ART.  1438.  The  judge,  after  examining  the  documents  presented 
with  the  complaint,  shall  issue  the  execution  if  the  written  evidence 

1  Current  accounts  are  always  understood  to  be  net,  because  their  payment  depends 
upon  a  simple  arithmetical  operation,  it  being  possible  to  assign  the  credits  derived 
therefrom  without  the  knowledge  and  even  against  the  will  of  the  debtor. — Decision 
of  December  2,  1887. 

2  See  article  111  of  the  Code  of  Commerce  in  force  and  article  49  of  the  Commercial 
Eegistry  Regulations  with  regard  to  the  computation  in  cash  of  debts  payable  in 
kind. 

3  When  the  execution  creditor  desists  from  the  action  against  one  of  the  debtors, 
there  is  no  legal  reason  for  said  debtor  to  be  included  in  the  proceedings  thereafter. 
In  no  case  in  which  the  executory  action  is  abandoned  is  there  any  obstacle  to  the 
institution  of  an  ordinary  action  involving  another  cause  of  action,  even  though  the 
latter  should  include  a  claim  for  the  recovery  of  the  amount  not  recovered  in  the  first 
action. — Decision  of  February  11,  1860, 


LAW    OF    CIVIL    PROCEDURE.  289 

should  not  contain  any  of  the  defects  mentioned  in  the  first  and  second 
paragraphs  of  article  14:65. 

Otherwise  he  shall  deny  it  without  hearing  the  defendant. 

ART.  1439.  A  petition  for  a  rehearing  and  an  appeal  shall  be  allowed 
against  a  ruling  denying  the  execution, in  accordance  with  articles  376  and 
379,  but  without  copies  of  the  petitions  nor  a  hearing  of  the  defendant. 

This  appeal  shall  be  allowed  for  a  review  as  well  as  for  a  stay  of  pro- 
ceedings, and  the  record  shall  be  forwarded  to  the  appellate  court  with 
a  summons  of  the  plaintiff  only.1 

ART.  1440.  After  the  execution  has  been  issued,  the  order  shall  be 
delivered  to  a  bailiff  of  the  court,  who  shall  demand  payment  of  the 
debtor  in  the  presence  of  the  court  clerk.  If  the  debtor  should  not 
make  payment  at  once,  sufficient  property  shall  be  attached  to  cover 
the  amount  mentioned  in  the  execution  and  the  costs,  which  property 
shall  be  deposited  as  prescribed  by  law.2 

ART.  1441.  If  the  defendant  should  not  be  found  at  his  residence 
after  twice  seeking  him  at  an  interval  of  six  hours,  at  the  second  call 
demand  for  payment  shall  be  made  by  writ,  which  shall  be  delivered 
to  the  persons  mentioned  in  article  268  in  their  order,  and  thereafter 
the  attachment  shall  be  levied  if  immediate  payment  is  not  made. 

ART.  1442.  When  the  domicile  of  the  debtor  or  his  whereabouts  is 
unknown,  the  judge  may  order,  at  the  instance  of  the  plaintiff,  that 
the  attachment  be  levied  without  a  previous  demand  for  payment,  or 
making  such  demand  of  the  person  in  charge  of  the  property,  should 
there  be  any. 

In  such  case,  said  demand  and  the  notice  that  the  property  attached 
is  to  be  sold  shall  be  included  in  the  same  process,  in  the  manner 
which  will  be  indicated  in  article  1458. 3 

*An  appeal  for  annulment  of  judgment  is  not  proper  by  reason  of  a  breach  of  law 
in  executory  actions,  nor  in  issues  raised,  heard,  and  determined  in  such  actions 
or  in  proceedings  for  compulsory  process,  which  is  its  complement,  and  still  less  so 
when  these  issues  do  not  terminate  the  action  nor  render  its  continuation  impossible. 

2  The  court  which  has  ordered  the  attachment  and  the  deposit  shall  be  compe- 
tent to  take  cognizance  of  any  violation  or  abuse  which  may  be  committed  with 
regard  to  the  property  deposited. — Decision  of  June  30,  1873. 

In  an  executory  action  against  an  association,  payment  is  to  be  demanded  of  the 
latter  and  it  is  to  be  cited  for  the  sale,  through  its  agents. — Decision  of  May  29,  1883. 

The  execution  debtor  may  raise  a  question  of  incompetency,  by  pleading  an  inhibi- 
tion or  a  declinature,  when  payment  is  demanded  of  him  and  when  he  is  cited  for 
the  public  sale  and  opposes  the  execution;  and  if  he  does  not  do  so,  he  submits  in  an 
implied  manner  to  the  jurisdiction  of  the  judge  taking  cognizance  of  the  matter. — 
Decision  of  February  20,  1861. 

3  The  failure  to  give  notice  of  the  sale  in  an  executory  action  is  equivalent  to  a 
failure  to  issue  a  summons  in  the  ordinary  action. — Decision  of  May  29,  1882. 

Treating  of  a  company,  the  demand  for  payment  as  well  as  the  notice  of  the  sale, 
which  is  equivalent  to  a  summons  in  the  ordinary  action,  must  be  served  upon  the 
representative  thereof,  and  if  there  should  not  be  one,  upon  the  partners,  and  if  this 
be  not  done,  grounds  for  an  appeal  are  given,  as  well  as  when  a  citation  for  judgment 
is  in  question. — Decision  of  January  19,  1884. 
2901 19 


290  LAW    OF    CIVIL    PROCEDURE. 

ART.  1443.  Even  though  the  debtor  should  make  payment  upon 
demand,  all  the  costs  incurred  shall  be  taxed  against  him. 

If  the  principal  debt  and  the  costs  are  paid  upon  demand,  this  fact 
shall  be  stated  upon  the  record  by  means  of  an  entry,  and  a  receipt 
therefor  shall  be  issued  by  the  court  clerk. 

The  judge  shall  order  the  sum  paid  to  be  delivered  to  the  debtor  and 
the  proceedings  shall  be  considered  closed. 

ART.  1444.  If  the  debtor  should  deposit  the  amount  claimed  for  the 
purpose  of  avoiding  the  trouble  and  expense  of  the  attachment,  reserv- 
ing his  right  to  oppose  the  execution,  the  attachment  shall  be  sus- 
pended and  the  amount  shall  be  deposited  in  the  establishment  provided 
therefor. 

If  the  amount  deposited  should  not  be  sufficient  to  cover  the  principal 
debt  and  the  costs,  the  attachment  shall  be  levied  for  the  balance. 

ART.  1445.  Should  there  be  specially  mortgaged  or  pledged  property, 
the  attachment  shall  be  first  levied  thereupon. 

Should  there  not  be  any  such  property,  or  if  the  property  specially 
mortgaged  or  pledged  should  be  clearly  insufficient,  the  attachment 
shall  be  levied  upon  the  property  in  the  following  order: 

1.  Money,  if  any  should  be  found. 

2.  Public  securities. 

3.  Jewelry  of  gold,  silver,  or  precious  stories. 

4.  Credits  which  may  be  at  once  realized  upon. 

5.  Products  and  rents  of  all  kinds. 

6.  Live  stock. 

7.  Personal  property. 

8.  Real  property. 

9.  Salary  or  pensions. 

10.  Credits  and  rights  which  can  not  be  at  once  realized  upon.1 
ART.  1446.  No  attachment  shall  be  levied  upon  railways  open  to 

the  public  service,  nor  upon  their  stations,  warehouses,  workshops, 
lands,  structures,  and  buildings  which  may  be  necessary  for  the  use 
thereof,  nor  upon  the  locomotives,  cars,  and  other  stationary  or  rolling 
stock  used  in  the  operation  of  the  line. 

When  an  execution  is  issued  against  a  railroad  company  or  enter- 
prise it  shall  be  enforced  as  prescribed  in  the  law  of  November  12, 
1869. 2 


1The  supreme  court,  in  annulling  and  reversing  a  judgment,  stated  that  "The 
daily  wage  which  a  laborer  earns  in  payment  of  his  work  is  a  right  in  his  favor  aris- 
ing from  his  contract,  to  be  collected  at  the  moment  established  in  said  contract,  or 
otherwise,  by  the  customs  of  the  place;  it  is  a  right  included,  therefore,  in  number 
10  of  article  1447  of  the  Law  of  Civil  Procedure,  in  the  list  of  property  which  can 
be  attached." — Decision  of  June  9,  1890. 

2  Executory  actions  which  may  be  instituted  according  to  article  2  of  the  law 
referred  to  must  be  heard  and  determined  according  to  the  procedure  established 


LAW    OF    CIVIL    PROCEDURE.  291 


., 


ART.  1447.  Neither  shall  an  attachment  be  levied  upon  the  bed  in 
daily  use  of  the  debtor,  his  wife  and  children,  nor  upon  their  necessary 
clothing,  nor  upon  the  tools  required  in  the  art  or  trade  in  which  said 
debtor  may  be  engaged. 

With  the  exception  of  the  property  mentioned,  nothing  shall  be 
excepted.1 

•  ART.  1448.  If  products  or  rents  are  attached,  a  judicial  administra- 
on  shall  be  established  which  shall  be  intrusted  to  the  person  which 

the  creditor  may  designate. 

With  regard  to  the  accounts  of  this  administration,  the  provisions 

of  articles  1009  et  seq.  shall  be  observed,  but  there  shall  be  no  remedy 

whatsoever  against  a  judgment  which  may  be  rendered,  in  a  proper 

case,  in  the  second  instance.2 
ART.  1449.  In  cases  in  which  salaries  or  pensions  are  to  be  attached, 

one-fourth  thereof  only  shall  be  attached  if  they  are  less  than  5,000 

pesetas  per  annum;  one-third  thereof  if  not  less  than  5,000  nor  more 

than  11,250,  and  one-half  if  over  11,250  pesetas. 

Both  the  salary  and  allowances  of  public  employees,  during  the  time 

they  receive  the  same,  shall  be  taken  into  consideration  for  the  pur- 
oses  of  this  article. 

If  they  should  receive  a  salary  but  no  allowances,  the  attachment 
all  be  reduced  to  the  proportional  amount  of  such  salary. 
When,  by  provision  of  law,  said  salaries  or  pensions  are  charged 
ith  a  permanent  or  temporary  discount,  the  net  amount  received  by 
e  debtor,  after  deducting  said  discount,  shall  serve  as  a  basis  for  the 

in  the  law  of  civil  procedure  for  actions  of  this  character,  as  no  special  form  of  pro- 
cedure is  established  in  the  aforementioned  law. — Decision  of  December  14,  1875. 

The  courts  can  not  enforce  any  claim  whatsoever  made  for  the  return  of  the  secur- 
ities or  net  amounts  which  may  appear  in  favor  of  a  contractor  until  the  administra- 
tion decides  upon  the  liabilities  which  may  have  been  incurred;  but  this  does  not 
prevent  the  judicial  authority  from  ordering  the  attachment  of  what  may  be  proper. — 
Royal  Decree,  circular  of  September  25,  1888. 

1  Although  Law  15,  Title  XXXI,  Book  XI,  of  the  Novfsima  Recopilacion  has  been 
repealed  by  the  law  of  civil  procedure  in  so  far  as  it  prohibited  the  levying  of  attach- 
ments upon  agricultural  implements,  yoke  of  oxen,  and  plantings  of  farmers,  it  still 
continues  in  force  with  regard  to  the  preference  which  that  and  other  laws  establish 
in  favor  of  the  owner  for  the  collection  of  the  rental  due  upon  his  lands;  and  a 
judgment  which  so  declares  does  not  violate  articles  941  and  951  of  the  former  law, 
which  concord  with  articles  1429  and  1449  of  the  law  in  force,  nor  does  it  violate 
articles  157  and  160  of  the  mortgage  law,  because  the  privilege  mentioned  arises  from 
the  character  and  nature  of  the  lease  contract  and  not  from  a  legal  mortgage  estab- 
lished upon  real  property. — Decision  of  July  1,  1880. 

2  The  judicial  depositary-administrator  of  an  attachment,  as  the  real  attorney  or 
agent  of  the  judge  who  appoints  him,  is  a  priviledged  creditor  with  regard  to  the 
fees  for  his  official  management,  that  is  to  say  for  the  expenses  incurred  in  the 
custody,  management,  etc. — Decision  of  March  31,  1886. 


292  LAW    OF    CIVIL    PROCEDURE. 

attachment,  in  accordance  with  the  proportion  fixed  in  the  foregoing 
paragraph.1 

ART.  1450.  Whatever  be  the  private  settlements  which  the  debtor 
may  have  made  with  his  creditors,  when  a  judicial  proceeding  is  insti- 
tuted against  the  salary  or  pension  received  by  said  debtor  from  the 
funds  of  the  State,  a  province,  or  a  municipality,  only  the  propor- 
tional part  thereof  established  in  the  foregoing  article  can  be  attached, 
the  remainder  being  always  free  from  all  liability. 

ART.  1451.  A  cautionary  notice  shall  be  made  of  the  attachment  of 
real  property  in  the  registry  of  property,  in  accordance  with  the 
provisions  of  the  mortgage  law  and  the  regulations  for  its  execution, 
and  the  proper  mandate  therefor  shall  be  issued  in  duplicate.2 

ART.  1452.  The  creditor  may  be  present  at  the  levying  of  the  attach- 
ment'and  select  the  property  to  be  attached,  subject  to  the  order 
established  in  article  1445. 

He  may  also,  under  his  liability,  designate  the  depositary.  This 
designation  can  not  be  made  by  the  debtor.3 

ART.  1453.  The  creditor  may  also  request  an  increase  of  the  attach- 
ment during  the  course  of  the  proceedings,  and  the  judge  must  order 
said  increase  if  he  should  consider  that  there  are  grounds  to  believe 
that  the  property  attached  may  be  insufficient  to  cover  the  principal 
and  costs. 

He  shall  also  order  it  when  the  petition  is  based  on  the  fact  that  a 
demand  in  intervention  has  been  interposed  or  is  limited  to  property 
specially  mortgaged  for  the  security  of  the  credit  claimed.4 

1  Soldiers  who  have  been  sentenced  to  imprisonment  and  who  receive  but  one-third 
of  their  pay  can  not  have  their  salary  further  reduced. — Royal  Order  of  November 
30,  1872. 

The  courts  of  justice  are  the  only  ones  competent  to  order  the  retention  of  salaries 
received  by  public  officials  for  the  payment  of  debts,  whether  said  officials  are  civil 
or  military,  excepting  when  the  debtor  agrees  to  said  retention  and  the  rights  of 
other  creditors  are  not  prejudiced. — Royal  Order  of  December  21,  1872. 

See  articles  524  to  531  of  the  Code  of  Military  Justice. 

2 With  regard  to  the  cautionary  notice  of  property  in  litigation,  etc.,  see  articles  42 
et  seq.  of  the  mortgage  law  and  articles  Q\et  seq.  of  the  regulations  for  its  execution. 

The  attachment  of  property  does  not  give  any  right  of  preference  with  regard  to 
other  creditors. — Decision  of  October  10,  1882. 

The  effect  of  cautionary  notices  of  attachments  is  simply  to  secure  the  payment 
of  the  credit  before  that  of  rights  subsequently  created,  but  does  not  affect  said 
credit  with  regard  to  previous  rights. — Decision  of  July  10,  1889. 

The  attachment  of  property  which  has  not  been  recorded  in  the  registry  of  prop- 
erty in  accordance  with  article  42  of  the  mortgage  law  does  not  give  rise  to  the 
annulment  of  the  sale  subsequently  made. — Decision  of  May  1,  1884. 

3  A  violation  of  this  article  can  not  serve  as  a  basis  for  an  appeal  for  annulment  of 
judgment  by  reason  of  breach  of  law. — Decision  of  January  25,  1876. 

*A  legitimate  right  is  exercised  when  the  increase  of  an  attachment  is  requested, 
and  therefore  a  person  making  use  thereof  can  not  be  said  to  be  included  in  the  pro- 
hibition prescribed  in  Law  17,  Title  XXXIV,  Partida  7.— Decision  of  June  30,  1880. 


p 


LAW   OF    CIVIL    PROCEDURE.  293 

ART.  1454.  If,  during  the  executory  action  and  before  an  order  for 
sale  is  issued,  any  installment  of  the  obligation  involved  should  fall  due, 
the  execution  may  be  increased  so  as  to  include  the  amount  of  said 
instalment  if  the  plaintiff  should  so  request,  without  the  necessity  of 
retrogression  in  the  action,  and  the  proceedings  already  taken  shall  be 
considered  as  applying  to  the  increased  execution. 

The  order  of  sale  shall  also  be  changed  so  as  to  include  the  additional 
stallments  claimed. 

ART.  1455.  The  other  instalments  of  the  same  obligation  which 
ould  fall  due  after  the  order  for  the  sale  has  been  issued  may  be 
imed  by  new  complaints  in  the  same  executory  action. 
In  such  cases,  after  the  new  complaint  has  been  presented,  the  judge 
11  order  the  record  brought  before  him,  with  a  citation  of  the  parties, 
rdering  a  copy  of  the  former  to  be  delivered  to  the  debtor;  if  the 
ebtor  should  not  object  within  the  three  days  following,  judgment 
all  be  rendered  without  further  proceedings,  and  it  shall  be  ordered 
at  the  order  of  sale  include  the  new  instalments  which  have  become 
e  and  claimed,  with  regard  to  which  the  execution  shall  also  be 
rosecuted. 

ART.  1456.  If  the  debtor  should  object  within  the  period  mentioned, 
is  opposition  shall  be  heard  and  determined  in  accordance  with  the 
revisions  of  articles  1461  et  seq.,  without  suspending  the  compulsory 
Tocess  with  regard  to  the  previous  instalments,  when  it  is  so  requested 
>y  the  plaintiff,  for  which  a  separate  record  shall  be  made  if  necessary. 
ART.  1457.  After  the  attachment  has  been  levied,  when  the  domicile 
f  the  debtor  is  known  he  shall  be  notified  by  writ,  in  the  manner 
rescribed  for  the  respective  cases  by  articles  270  et  seq. ,  that  the  sale 
of  the  property  attached  has  been  ordered. 

With  the  writ  of  citation  there  shall  be  delivered  to  the  defendant 
e  copies  of  the  complaint  and  documents  which  the  execution  cred- 
tor  may  have  presented,  the  fact  of  said  delivery  being  entered  upon 
e  memorandum  of  service.1 


"1 

: 


1  Notice  that  the  sale  of  the  property  attached  has  been  ordered  can  not  be  served 
upon  a  person  who  has  not  been  a  party  to  the  proceedings. — Decision  of  October  13, 
'864. 

In  executory  actions  the  service  of  the  order  of  sale  is  equivalent  to  the  summons 
ordinary  actions. — Decisions  of  April  24  and  May  IS,  1869,  February  7,  1878,  and 
May  27,  1880. 

The  provisions  of  this  article  do  not  signify  that  in  order  to  be  valid  the  attach- 
ment and  the  order  for  the  sale  in  executory  actions  must  be  made  in  the  same  act, 
but  they  order  only  that  after  the  attachment  has  been  made  the  debtor  be  cited  for 
the  purpose  indicated,  in  the  legal  manner  prescribed. — Decision  of  February  10, 1876. 

After  the  order  of  sale  has  been  duly  served  in  an  executory  action,  it  produces  all 
its  effects  against  all  those  who  subsequently  appear  in  representation  of  the  rights 
and  obligations  of  the  execution  debtor,  and  therefore  a  judgment  to  this  effect  does 
not  violate  any  form  of  procedure  nor  the  principle  of  law  that  no  one  can  be  con- 
demned in  an  action  without  being  heard. — Decision  of  April  29,  1879. 

The  court  clerk  who  does  not  cite  the  debtor  in  the  manner  prescribed  in  this  article 
incurs  the  liability  mentioned  in  article  280. — Decision  of  April  18,  1885. 


294  LAW    OF    CIVIL    PROCEDURE. 

ART.  1458.  If  the  domicile  or  whereabouts  of  the  debtor  is  unknown, 
notice  of  the  order  of  sale  shall  be  served  upon  him  by  means  of  edicts, 
in  the  manner  prescribed  in  article  269,  and  he  shall  be  granted  a 
period  of  nine  days  to  enter  an  appearance  in  the  proceedings  and 
oppose  the  execution  should  he  care  to  do  so. 

The  statement  shall  be  made  in  the  edicts  that  the  attachment  was 
made  without  a  previous  demand  for  payment  because  the  whereabouts 
of  the  debtor  was  unknown. 

ART.  1459.  Within  the  period  of  three  legal  days,  which  period  can 
not  be  extended,  to  be  counted  from  that  following  the  citation  made 
in  any  of  the  forms  referred  to  in  article  1457,  the  debtor  may  object 
to  the  execution,  having  his  appearance  entered  through  a  solicitor. 

ART.  1460.  After  the  period  fixed  for  the  respective  cases  in  the  two 
preceding  articles  has  elapsed  without  the  defendant  entering  an 
appearance  in  the  action,  he  shall,  at  the  instance  of  the  plaintiff,  be 
declared  in  default,  and  the  proceedings  shall  follow  their  course  with- 
out the  defendant  being  again  cited  or  any  other  notices  being  served 
upon  him  except  those  prescribed  by  law. 

At  the  same  time  the  judge  shall  order  the  record  to  be  brought 
before  him  for  judgment,  with  a  citation  of  the  plaintiff  only. 

ART.  1461.  If  the  debtor  should  object  at  the  proper  time  and  in  the 
proper  manner,  his  opposition  shall  be  admitted  and  he  shall  be 
ordered  to  perfect  it  within  a  period  of  four  days,  which  can  not  be 
extended,  pleading  the  exceptions  and  submitting  the  evidence  which 
he  may  consider  proper,  for  which  purpose  the  provisions  of  article 
519  shall  be  observed. 

Upon  serving  notice  of  this  order  on  the  solicitor  of  the  execution 
debtor  cited  by  edicts,  the  copies  of  the  complaint  and  of  the  docu- 
ments shall  also  be  served  upon  him. 

If  the  four  days  should  elapse  without  the  opposition  being  per- 
fected, the  judge  shall  order  the  record  brought  before  him  and  cite 
the  parties  for  judgment,  without  the  necessity  of  a  motion  therefor 
from  the  plaintiff.1 

1  This  article  is  not  violated  if  no  evidence  is  taken  in  the  second  instance  when 
the  debtor  upon  whom  the  order  of  sale  has  been  served  has  not  opposed  the  execu- 
tion, in  accordance  with  the  provisions  of  this  and  of  the  preceding  article. — Decision 
of  October  1,  1884. 

After  the  period  prescribed  in  this  article  has  elapsed  neither  an  exception  taken 
to  the  lack  of  personal  capacity  on  the  part  of  the  execution  creditor  nor  the  other 
exceptions  mentioned  in  the  following  article  can  be  admitted  by  the  judge. — Deci- 
sions of  April  6,  1887,  April  12  and  November  19,  1888. 

The  pleading  of  exceptions  and  the  submission  of  evidence  do  not  belong  to  differ- 
ent and  successive  proceedings  in  an  executory  action,  but  there  is  a  unity  between 
them,  according  to  this  article  of  the  law  of  procedure.  Therefore  a  consequence  of 
this  unity  is  that  when  the  right  for  one  is  lost  so  is  also  the  right  for  the  other;  and 
such  is  the  case  when,  the  period  fixed  within  which  to  make  an  opposition  having 
elapsed,  the  judgment  creditor  requests  that  the  debtor  be  declared  in  default. — 
Decision  of  November  10,  1879. 


LAW    OF    CIVIL    PROCEDURE.  295 

ART.  1462.  The  following  exceptions  only  shall  be  admissible  in  an 
executory  action: 

1.  Falsity  of  the  title  importing  a  confession  of  judgment,  or  of  the 
act  which  gave  the  title  this  character. 

2.  Payment. 

3.  Compensation  of  a  net  credit  appearing  in  a  document  importing 
a  confession  of  judgment. 

4.  Prescription. 

5.  Composition  or  respite. 

6.  Promise  or  agreement  to  waive  demand  of  payment. 

7.  Lack  of  personal  capacity  on  the  part  of  the  execution  creditor 
or  his  solicitor. 

8.  Novation. 

9.  Compromise. 

10.  An  agreement  to  submit  the  matter  for  decision  to  arbitrators 
or  to  amicable  compounders,  executed  with  the  formalities  prescribed 
by  this  law. 

11.  Lack  of  competent  jurisdiction. 

Any  other  exception  which  the  debtor  may  plead  shall  be  reserved 
for  a  declaratory  action,  and  it  shall  not  prevent  the  rendition  of  a 
judgment  of  sale.1 

ART.  1463.  In  executory  actions  based  upon  bills  of  exchange,  the 
only  exceptions  admissible  shall  be  those  mentioned  in  the  first  five 

1  With  regard  to  the  prescription  of  actions  arising  from  commercial  obligations,  see 
Title  II  of  Book  IV  of  the  Code  of  Commerce  in  force  (articles  942  to  954),  in  which 
are  included  all  the  provisions  which  in  the  Code  of  1829  were  scattered  among 
Titles  XII  of  Book  II  and  V  of  Book  III.  The  modifications  and  additions  made 
are  of  some  importance. 

With  regard  to  the  contents  of  number  5,  article  524  of  the  said  Code  states:  "The 
amount  which  a  creditor  remits  or  releases  a  debtor  against  whom  an  action  has  been 
brought  for  the  payment  or  reimbursement  of  a  bill  of  exchange  shall  be  under- 
stood as  extended  also  to  the  rest  who  may  be  liable  for  the  effects  of  the  collection." 

With  regard  to  compensation  the  Supreme,  Court  has  declared:  In  order  that  a 

credit  may  be  set  off  with  another,  it  is  necessary  that  it  be  net  or  fixed ;  in  a  decision 

of  June  18,  1869,  that  in  order  that  compensation  may  take  place  it  is  an  essential 

requisite  among  others  that  the  debt  which  it  is  desired  to  set  off  be  specific  and 

xed;  in  that  of  March  17,  1873,  that  compensation  is  proper  only  among  debts 

hich  are  net  and  specific,  and  the  certainty  of  which  must  be  proven  within  a 
period  of  ten  days;  from  which  it  may  be  clearly  deduced  that  the  truth  of  a  debt 
which  can  be  set  off  must  be  easily  and  immediately  decided. — Decision  of  December 
17,  1864. 

The  exceptions  pleaded  by  the  defendant  must  be  proven  by  him,  and  it  is  the 
duty  of  the  adjudging  chamber  to  consider  whether  they  have  or  have  not  been 
proven. — Decision  of  January  30,  1885. 

The  lack  of  personality  on  the  part  of  the  plaintiff  or  his  solicitor  can  not  be 
pleaded  except  at  the  moment  opposition  is  made  to  the  execution. — Decision  of 
April  6,  1887. 


296  LAW    OP    CIVIL    PROCEDURE. 

subdivisions  of  the  foregoing  article,  the  last  to  be  proven  by  a  public 
instrument  or  by  a  private  document  acknowledged  in  court,  and  in 
addition  the  exception  of  the  caducity  of  the  bill  of  exchange.1 

ART.  1464.  The  defendant  may  also  base  his  opposition  to  the  exe- 
cution on  the  grounds  that  the  amount  claimed  in  the  complaint  or 
the  computation  in  cash  of  debts  payable  in  kind  is  excessive. 

ART.  1465.  The  defendant  may  also  request  that  the  action  be 
declared  void,  on  the  following  grounds: 

1.  When  the  obligation  or  the  title  by  virtue  of  which  the  execution 
may  have  been  issued  is  void. 

2.  When  the  title  should  not  be  one  importing  a  confession  of  judg- 
ment (fuerza  ejecutiva),  either  on  account  of  external  defects,  or  because 
it  is  not  yet  due,  or  because  it  is  not  actionable,  or  the  amount  is  not 
a  specific  sum. 

3.  When  the  debtor  has  not  been  served  with  the  notice  of  sale, 
with  the  formalities  prescribed  by  law. 

4.  When  the  execution  debtor  should  lack  the  personal  or  repre- 
sentative capacity  under  which  he  is  sued. 

ART.  1466.  The  written  objection  of  the  execution  debtor  shall  be 
referred  to  the  plaintiff  for  a  period  of  four  da}^s,  and  the  record  of 
the  case  shall  be  delivered  to  him  for  the  purpose  of  enabling  him  to 
answer  and  to  submit  such  testimon}7  as  he  may  deem  proper. 

A  copy  of  the  answer  shall  be  attached  for  delivery  to  the  defendant. 

After  the  four  days  have  elapsed,  the  record  shall  be  recovered  with- 
out the  necessity  of  compulsory  process,  the  procedure  established  in 
article  308  being  employed.2 

ART.  1467.  After  the  answer  has  been  presented  or  the  record  recov- 
ered without  the  same,  the  judge  shall  admit  evidence  for  a  period  of 
ten  days,  common  for  both  parties,  if  either  of  the  parties  should  have 
requested  it. 

During  these  ten  days  the  evidence  submitted  by  either  party  shall 
be  taken,  if  the  .judge  deems  it  pertinent,  the  provisions  established  in 
section  V  of  the  procedure  for  ordinary  actions  of  greater  import  being 
observed  therein.3 

ART.  1468.  The  period  for  the  taking  of  evidence  can  not  be  extended 
nor  suspended  except  with  the  consent  of  both  parties,  or  if  the  judge 

1  The  new  Code  of  Commerce,  instead  of  introducing  any  innovations  on  this  point, 
confirms  the  provisions  of  this  law,  stating  in  article  523  that:  "Against  an  executory 
action  based  on  bills  of  exchange  no  other  exceptions  shall  be  admitted  but  those 
mentioned  in  the  Law  of  Civil  Procedure." 

2  An  exception  pleading  a  lack  of  personal  capacity  on  the  part  of  the  execution 
creditor  is  not  admissible  when  the  executory  action  is  based  on  a  bill  of  exchange. — 
Decision  of  October  25,  1888. 

3  The  submission  of  evidence  after  the  expiration  of  the  ten  days  prescribed  there- 
for is  not  admissible  on  appeal. — Decision  of  December  12,  1865. 


CA. 

,k, 

th( 


LAW    OF    CIVIL    PROCEDURE.  297 

should  deem  it  necessary  for  the  reason  that  all  or  part  of  said  evidence 
must  be  taken  at  a  place  other  than  where  the  action  is  pending.  In 
such  case  he  shall  order  that  the  period  for  the  taking  of  evidence  be 
extended  the  number  of  days  it  takes  the  mail  to  reach  the  town  where 

e  evidence  is  to  be  taken. 

ART.  1469.  After  the  period  for  the  taking  of  evidence  has  expired, 
the  judge  shall  order,  without  the  necessity  of  a  request  therefor 
being  made,  that  the  evidence  taken  be  attached  to  the  record  and  that 
said  record  be  placed  in  the  clerk's  office  for  the  examination  of  the 
parties,  for  the  period  of  four  days,  which  shall  be  common  for  all  of 
them. 

ART.  1470.  Upon  the  expiration  of  the  said  four  days,  the  judge 
shall  order  the  record  brought  before  him  with  a  citation  of  the  par- 
ties for  judgment. 

He  shall  issue  a  similar  order,  when  no  evidence  is  to  be  taken,  and 
shall  further  order  that  a  copy  of  the  petition  of  the  plaintiff  be  deliv- 
ered to  the  defendant. 

If  before  the  expiration  of  the  day  following  the  service  of  the 
notice  of  these  orders,  any  of  the  parties  should  request  it,  he  shall 
fix  a  day  within  the  next  six  days  for  the  hearing.1 

ART.  1471.  Within  three  days  after  the  hearing,  or  within  five  da}^s 
if  no  hearing  is  had,  the  judge  shall  render  judgment,  which  shall  con- 
tain one  of  the  three  following  decisions: 

1.  That  the  execution  be  enforced,  stating  the  amount  to  be  paid  to 
the  debtor. 

2.  Refusing  to  issue  an  order  for  sale. 

3.  Declaring  the  nullity  of  the  entire  proceedings,  or  part  thereof. 
In  the  latter  case  the  proceedings  shall  be  returned  to  the  state  in  which 

<ey  were  when  the  error  was  committed. 
He  shall  also  make  such  declarations  as  may  be  proper  with  regard 
the  exceptions  pleaded,  and  if  an  exception  to  the  jurisdiction  should 

1  The  defendant  may  raise  a  question  of  jurisdiction  by  interposing  an  inhibitory 
or  declinatory  plea,  when  payment  is  demanded  of  him  and  when  the  order  of  sale 
is  served  upon  him  and  he  opposes  the  execution,  and  should  he  not  take  this  action 
he  impliedly  submits  to  the  jurisdiction  of  the  judge  taking  cognizance  of  the  pro- 
ceedings.— Decision  of  February  20,  1861. 

In  an  executory  action  the  service  of  the  order  of  sale  is  equivalent  to  the  sum- 
mons in  the  ordinary  action,  and  the  omission  thereof  renders  the  proceedings  null 
and  void.  Should  there  be  more  than  one  debtor,  all  of  them  must  be  cited  and 
summoned,  under  the  penalty  of  nullity. — Decision  of  June  20,  1866. 

A  hearing  without  a  day  being  previously  fixed  therefor  is  equivalent  to  the  non- 
citation  of  the  execution  debtor  for  judgment. — Decision  of  November  29,  1866. 

When  an  executory  action  against  an  association  is  in  question,  payment  must  be 
demanded,  and  the  order  for  the  sale  must  be  served  upon  the  attorneys  of  the 
same. — Decision  of  May  %3,  1883. 


298  LAW    OF    CIVIL    PROCEDURE. 

have  been  pleaded  and  he  deems  it  well  taken,  he  shall  abstain  from 
passing  upon  the  others.1 

AKT.  1472.  In  the  first  case  of  the  foregoing  article  the  costs  shall 
be  taxed  against  the  execution  debtor,  unless  he  has  successfully 
pleaded  any  of  the  exceptions  mentioned  in  article  1464,  and  shall 
have  deposited  at  the  time  of  the  pleading  thereof  the  amount  of 
the  indebtedness. 

In  the  second  case  the  costs  shall  be  taxed  against  the  plaintiff. 

In  the  third  case  each  party  shall  pay  his  own  costs,  unless  there 
should  be  reason  to  tax  them  against  one  of  the  parties  on  account 
of  his  having  proceeded  upon  insufficient  grounds;  or,  by  way  of 
correction,  against  the  official  responsible  for  the  annulment  of  the 
proceedings.2 

ART.  1473.  In  case  of  an  appeal  the  appellate  court  shall  impose  the 
costs,  by  way  of  a  disciplinary  correction,  upon  the  judge  who,  in 
violation  of  law  and  on  account  of  an  inexcusable  error,  in  the  opinion 
of  the  court,  should  have  improperly  ordered  the  execution,  or  should 
have  denied  it  when  it  was  proper. 

ART.  1474.  Whatever  be  the  judgment  rendered,  it  may  be  appealed 
from  for  review  and  for  a  stay  of  proceedings. 

If  the  judgment  should  order  a  judicial  sale,  referred  to  in  sub- 
division 1  of  article  1471,  it  shall  be  executed  by  compulsory  process, 
notwithstanding  the  appeal,  if  the  plaintiff  should  so  request  and  give 
security  to  answer  for  all  that  he  may  receive  in  case  he  should  be 
required  to  return  the  same  on  account  of  a  reversal  of  judgment. 

1A  decision  ordering  that  the  execution  be  enforced  must  be  fulfilled  at  once. — 
Decision  of  November  30,  1865. 

A  ruling  refusing  to  order  the  raising  of  an  attachment  made  in  an  executory  action 
is  not  final  nor  does  it  put  an  end  to  the  proceedings  making  its  continuation  impos- 
sible.— Decision  of  March  28,  1868. 

An  appeal  for  annulment  of  judgment  does  not  lie  against  decisions  rendered  in 
executory  actions,  and  the  proceedings  to  enforce  an  order  for  sale  are  nothing  but  a 
complement  of  the  executory  action,  which  is  not  concluded  until  the  creditor  is 
paid. — Decision  of  March  18,  1872. 

An  order  for  sale  obtained  by  a  creditor  upon  whom,  according  to  article  510  of  the 
law  of  procedure,  the  resolution  of  a  meeting  of  creditors  is  not  binding,  does  not 
determine  a  special  preference  of  the  credit,  and  therefore  the  creditor  who  obtains 
said  order  does  not  separate  himself  from  the  insolvency  proceedings. — Decision  of 
March  26,  1884. 

2  Article  971  of  the  former  law  of  procedure  prescribed  that  the  costs  should  be 
taxed  against  the  judge  or  official  who  was  responsible  for  the  annulment  of  the  pro- 
ceedings, and  it  had  been  established  that  such  liability  did  not  comprise  those 
officials  who  only  took  part  in  the  preliminary  proceedings  of  the  annulled  action. — 
Decision  of  May  5,  1879.  At  the  present  time  the  costs  may  be  taxed  against  the 
judge  as  a  disciplinary  correction,  in  accordance  with  the  provisions  of  this  law  as 
contained  in  articles  450  and  1475. 

The  costs  imposed  in  an  executory  action  are  subject  to  what  may  subsequently 
be  decided  in  the  ordinary  action. — Decision  of  June  4,  1884- 


LAW    OF    CIVIL    PROCEDURE.  .  299 

This  security  must  be  furnished  to  the  satisfaction  of  the  judge 
within  the  six  days  following  the  service  of  the  order  allowing  the 
appeal,  and  may  be  of  any  of  the  kinds  recognized  by  law,  excepting 
a  personal  bond.1 

.ART.  1475.  After  the  surety  has  been  furnished  and  accepted  by  the 
judge,  the  original  record  shall  be  forwarded  to  the  superior  court  and 
the  parties  shall  be  summoned  to  appear,  certified  copies  of  such  por- 
tions of  the  record  as  may  be  necessary  to  enforce  the  judgment  remain- 
ing in  the  lower  court. 

If  the  judge  should  not  deem  the  security  sufficient,  it  must  be  per- 
fected within  four  days. 

After  the  expiration  of  the  foregoing  periods  without  the  security 
being  furnished,  or  perfected,  the  record  shall  be  transmitted  to  the 
appellate  court,  and  the  judgment  shall  not  be  enforced  until  the 
decision  is  final. 

ART.  1476.  After  the  order  for  sale  has  been  confirmed  by  the  supe- 
rior court,  the  security  shall  be  cancelled  dejure. 

In  no  ease  can  such  security  be  applied  to  the  results  of  the  ordinary 
action  which  may  subsequently  be  instituted.2 

ART.  1477.  Judgments  rendered  in  executory  actions  shall  not  give 
rise  to  the  exception  of  res  judicata,  the  parties  reserving  their  rights 
to  institute  an  ordinary  action  upon  the  same  question.3 

1  Orders  for  judicial  sales  are  not  final. — Decision  of  December  30,  1864- 

After  the  order  for  sale  has  been  consented  to  the  executory  action  is  terminated. — 
Dcnxion  of  February  28,  1866. 

2  Although  in   an  executory  action  the  costs  are  imposed  unconditionally,  which 
is  also  done  in  connection  with  the  sales,  all  these  costs  are  subject  to  the  decision 
which  may  be  subsequently  rendered  in  an  ordinary  action. — Decision  of  June  4,  1884. 

An  order  for  a  judicial  sale  rendered  in  an  executory  action  does  not  give  prefer- 
ence to  the  credit  involved. — Decisions  of  March  31,  June  1,  and  October  6,  1886,  June 
21  and  December  31,  1889,  and  June  19,  1890. 

3  The  privilege  reserved  by  the  parties  to  institute  an  ordinary  action  by  this  article 
is  for  the  sole  purpose  of  allowing  them  to  discuss  against  the  same  question,  observ- 
ing all  formalities — that  is  to  say,  as  to  whether  the  credit  which  served  as  a  basis  for 
the  execution  is  or  is  not  certain,  viz,  whether  it  was  really  owed;  but  not  to  argue 
the  defects  which  the  title  might  contain  nor  the  errors  in  the  first  proceedings,  which 
should  have  been  discussed  and  decided  therein  or  in  the  proper  appeal  for  annul- 
ment of  judgment. — Decision  of  March  6,  1891.     Reversing  and  annulling,  in  view  of 
article  1477  of  the  law  of  Cuba,  the  judgment  appealed  from,  in  which  and  in  that 
rendered  in  first  instance,  the  following  petitions  of  the  plaintiff  were  allowed:  That 
the  acknowledgment  made  of  the  debt  in  the  executory  action  be  declared  null;  that 
the  credit  claimed  in  said  proceedings  be  declared  improperly  paid,  and  that  the 
sales  made  be  declared  null  and  void. 

After  the  executory  action  an  ordinary  action  may  be  instituted,  not  for  the  pur- 
pose of  correcting  forms,  but  to  determine  after  a  more  extended  discussion  the  right 
of  the  parties. — Decision  of  May  29,  1884. 

Judgments  rendered  in  executory  actions  do  not  produce  the  exception  of  a  res 
judicata,  and  even  after  the  order  for  sale  a  consolidation  may  take  place  if  the  plain- 
tiff has  not  been  paid. — Decision  of  June  1,  1886. 


300  LAW    OF    CIVIL    PROCEDURE. 

ART.  1478.  No  other  issues  can  be  raised  in  executory  actions  than 
those  based  upon  questions  of  jurisdiction  or  from  consolidation  with 
universal  proceedings. 

Questions  of  competency  can  not  be  raised  after  the  debtor  nas 
objected  to  the  execution. 

Consolidation  can  take  place  until  the  creditor  is  paid,  reserving  the 
provisions  contained  in  articles  165  and  166. 1 

SECTION  II. — Compulsory  process. 

ART.  1479.  After  the  order  for  the  judicial  sale  has  been  made  and 
affirmed  by  the  audiencia,  or  after  the  securit}T  has  been  given  in  case 
the  fulfillment  thereof  is  requested  when  an  appeal  has  been  taken, 
payment  of  principal  and  costs  shall  be  made  at  once,  after  a  taxation 
of  the  latter,  if  the  property  attached  be  money,  salaries,  pensions,  or 
credits  which  may  immediately  be  realized  upon.2 

ART.  1480.  If  the  property  attached  be  negotiable  commercial  paper 
or  certificates  payable  to  bearer,  issued  by  the  Government  or  by 
properly  authorized  associations,  the  sale  thereof  shall  be  made  by  the 
agent  or  broker  which  the  judge  may  designate,  a  memorandum  of  the 
transaction,  together  with  a  certificate  of  the  person  making  the  sale 
to  the  effect  that  it  was  made  at  the  current  exchange  of  the  day  of  the 
sale,  being  attached  to  the  record. 

With  regard  to  securities  quoted  on  exchange,  the  judge  must  appoint 
an  agent  thereof  to  make  the  sale,  and  where  there  is  none,  a  commercial 
broker. 

ART.  1481.  If  the  property  attached  should  be  personal  property, 
it  shall  be  appraised  by  experts  appointed  b}^  the  parties,  and  a  third 
one  appointed  by  the  judge,  in  a  proper  case,  unless  the  persons  inter- 
ested should  have  fixed  in  the  contract  the  minimum  bid  to  be  accepted 
at  the  sale.3 

ART.  1482.  The  defendant,  who  is  not  included  in  the  provisions  of 
the  following  article,  shall  be  informed  of  the  appointment  of  the 
expert  made  by  the  plaintiff,  and  he  shall  be  required  to  appoint  one 
also  within  two  days,  under  the  admonition  that  his  failure  to  do  so 
shall  be  considered  as  an  agreement  on  his  part  to  the  expert  appointed 
by  the  former. 

1With  regard  to  the  consolidation  of  executory  actions  in  which  mortgaged  proj 
erty  is  involved,  see  article  133  of  the  Mortgage  Law. 

No  appeal  for  annulment  of  judgment  is  allowed  in  executory  actions,  and  therefore 
neither  in  issues  incidental  thereto. — Decisions  of  September  26  and  October  10,  1884- 

2  The  proceedings  for  judicial  compulsion  in  an  executory  action  are  supplemental 
thereto. — Decision  of  September  9,  1872. 

3  See  articles  36  et  seq.  of  the  regulations  for  the  organization  and  government  of 
commercial  exchanges,  and,  in  book  1  of  the  code  in  force,  the  provisions  relating  to 
commercial  brokers. 


-' 

Tf 


LAW    OF    CIVIL    PROCEDURE.  301 


f  the  execution  debtor  should  make  the  appointment  upon  being 
notified,  the  court  clerk  shall  make  a  memorandum  thereof  upon  the 
notice. 

If  the  expert  appointed  by  the  debtor  should  not  accept  the  appoint- 
ment, or  should  resign  before  having  performed  his  duty,  the  latter 
shall  be  required  to  appoint  another  in  the  same  manner.  If  the  sec- 
ond appointment  should  also  be  of  a  person  who  does  not  accept  the 
same,  or  who  resigns,  the  provisions  of  the  following  articles  shall  be 
observed. 

AKT.  1483.  If  the  judgment  debtor  whose  domicile  is  unknown 
should  have  been  declared  in  default  in  accordance  with  the  provisions 
of  article  1460,  the  appraisement  shall  be  made  by  the  expert  appointed 
by  the  plaintiff. 

Only  in  case  that  real  property  or  jewelry  of  considerable  value  is 
to  be  appraised,  may  the  judge,  if  he  considers  it  advisable,  appoint 
another  expert,  of  his  own  selection,  to  make  the  appraisal  together 
with  the  other  expert. 

ART.  1484:.  In  case  of  disagreement  the  appointment  of  the  third 
expert  shall  be  made  in  the  manner  prescribed  in  article  616. 

This  expert  may  be  challenged  in  accordance  with  the  provisions  of 
articles  618  et  seq. 

ART.  1485.  The  provisions  contained  in  articles  61T,  626  and  628 
shall  also  be  applicable  to  these  cases. 

ART.  1486.  After  the  property  has  been  appraised  public  bids  shall 
be  received  thereon  for  a  period  of  eight  days,  if  said  property  should 
consist  of  products,  live  stock,  or  personal  property,  or  for  twenty 
days,  if  the  property  should  consist  of  jewels  of  great  value,  edicts 
being  posted  in  the  customary  public  places  and  inserted  in  the  news- 
papers, should  there  be  any,  stating  the  day,  hour,  and  place  where 
the  sale  is  to  be  held. 

If  jewels  of  great  value  are  in  question,  the  judge  may  furthermore 
order  that  the  edicts  be  published  in  the  Gaceta  of  the  General 
Government.1 

ART.  1487.  If  the  property  attached  should  come  under  the  head  of 
real  property,  there  shall  be  ordered  before  the  appraisement  thereof: 

1.  That  an  order  be  issued  to  the  register  of  property  to  prepare 
and  forward  to  the  court  a  certificate  of  the  mortgages,  annuities 
(censos),  and  encumbrances  upon  said  property  or  to  the  effect, that  the 
property  is  unencumbered. 

1  When  among  the  property  of  the  defendant  which  has  been  attached  there  are 
credits,  these  may  be  collected  judicially  without  the  necessity  of  a  previous  cession 
or  transfer  made  by  the  former  in  favor  of  the  judgment  creditor,  because  otherwise 
the  attachments  would  be  illusory,  as  well  as  any  other  proceedings  of  the  executory 
action. — Decision  of  November  24,  1877. 


302  LAW    OF    CIVIL    PROCEDURE. 

2.  That  the  debtor  be  required  to  present  in  the  office  of  the  clerk 
the  titles  of  ownership  to  the  property  within  six  days.1 

ART.  1488.  If  it  should  appear  from  the  certificate  of  the  register 
that  the  property  is  encumbered  with  second  or  subsequent  uncancelled 
mortgages,  the  mortgagees  shall  be  informed  of  the  execution  in  order 
that  they  may  intervene  in  the  appraisement  and  sale  of  the  property, 
should  they  desire  so  to  do. 

ART.  1489.  After  the  notice  mentioned  in  the  foregoing  article  has 
been  served,  the  compulsory  process  shall  continue  without  further 
notice  to  the  mortgagees. 

If  the  latter  should  enter  their  appearance  before  the  appraisement, 
either  in  person  or  through  a  solicitor,  they  shall  have  the  right  to 
appoint  at  their  own  cost  an  expert  to  appraise,  with  the  experts 
appointed  by  the  defendant  and  by  the  plaintiff,  the  value  of  the 
mortgaged  estate  or  estates. 

In  such  case  they  shall  also  be  notified  of  the  order  fixing  the  day 
for  the  public  sale. 

ART.  1490.  After  the  titles  have  been  presented  by  the  debtor,  a 
separate  branch  of  the  record  shall  be  formed  with  the  same,  and  the 
plaintiff  shall  be  informed  thereof,  in  order  that  he  may  state  whether 
he  deems  them  sufficient  or  indicate  the  correction  of  the  errors  he 
may  find  therein. 

ART.  1491.  If  the  debtor  should  not  have  presented  the  titles  within 
the  period  fixed  in  subdivision  2  of  article  1487,  the  judge  may  judicially 
compel  him  to  present  the  same,  or  order  that  a  certificate  be  issued  of 
the  entries  in  the  registry  of  property  relating  thereto,  and  true  copies 
of  the  respective  instruments,  in  a  proper  case. 

If  no  results  should  be  obtained  from  these  proceedings,  or  if  no 
titles  of  ownership  should  exist,  the  absence  thereof  may  be  supplied 
by  the  means  established  in  title  14  of  the  mortgage  law. 

All  these  steps  shall  be  taken  at  the  instance  of  the  execution  cred- 
itor and  at  the  expense  of  the  debtor.2 

ART.  1492.  During  the  performance  of  the  proceedings  mentioned 
in  the  foregoing  article,  and  after  the  prescriptions  of  article  1488  have 
been  observed,  in  a  proper  case,  the  property  shall  be  appraised  in  the 
manner  established  in  articles  1481  et  seq.,  if  the  creditor  should  so 
request. 

If  there  should  be  three  experts  on  account  of  the  subsequent  mort- 
gagees having  made  use  of  the  right  granted  them  by  article  1489,  the 
appraisement  shall  be  determined  by  a  majority  vote  of  the  experts. 


1  According  to  the  royal  order  of  May  11,  1888,  in  order  that  the  provisions  of  th 
article  may  be  considered  as  complied  with,  it  is  necessary  that  there  should 
included  in  the  record  an  abstract  covering  the  entire  period  of  the  existence  of 
the  registry  relating  to  the  freedom  from  encumbrances  of  the  property  attached,  or 
specifying  the  charges  thereon. 

2  The  provisions  of  the  title  mentioned  of  the  mortgage  law  are  applicable  only 
property  or  rights  acquired  before  January  1,  1863. 


I 

or 

• 


LAW    OF    CIVIL    PROCEDURE.  303 

ART.  1493.  After  the  appraisement  has  been  made,  and  when,  in  the 
judgment  of  the  plaintiff,  the  titles  of  property  are  sufficient,  or  the 
lack  thereof  has  been  supplied  in  any  possible  manner,  the  property 
shall  be  offered  at  public  auction  for  a  period  of  twenty  days,  in  the 
manner  prescribed  in  article  1486. 

In  such  case  the  edicts  shall  also  be  published  in  the  Gaceta  of  the 
general  government,  if  the  judge  should  deem  it  advisable  in  view  of 
the  value  of  the  property,  and  in  every  case  in  the  official  bulletin  of 
the  province,  where  there  is  one. 

ART.  1494.  There  shall  also  be  stated  in  the  edicts  that  the  titles  of 
ownership  of  the  property  will  be  kept  in  the  office  of  the  clerk  sub- 
ject to  the  examination  of  the  persons  who  desire  to  bid  at  the  sale 
and  that  the  bidders  must  accept  said  titles,  and  that  they  shall  not 
have  the  right  to  demand  others. 

After  ,the  sale  no  claim  of  the  purchaser  relating  to  the  insufficiency 
of  or  defects  in  the  titles  shall  be  entertained. 

ART.  1495.  At  the  instance  of  the  creditors  the  property  may  be 
sold  at  public  auction  without  previously  supplying  the  lack  of  evi- 
dences of  title,  which  circumstance  shall  be  stated  in  the  edicts. 

In  such  case  the  provisions  contained  in  rule  5  of  articles  136  and 
139  of  the  regulations  for  the  execution  of  the  mortgage  law  of  Cuba 

Porto  Rico  shall  be  observed. 

ART.  1496.  Before  the  sale  takes  place,  the  debtor  may  release 
his  property  from  the  execution  by  paying  the  principal  and  costs. 
After  the  sale  it  shall  become  irrevocable. 

ART.  1497.  At  the  sale  of  personal  and  real  property  no  bids  shall 
be  accepted  which  do  not  amount  to  at  least  two-thirds  of  the  appraised 
value. 

Bids  may  be  offered  and  received  on  behalf  of  a  third  person. 

ART.  1498.  In  order  to  take  part  in  the  auction  the  bidders  must 
previously  deposit  with  the  court,  or  with  the  establishment  pro- 
vided for  the  purpose,  an  amount  equal  to  at  least  10  per  cent  of  the 
appraised  value  of  the  property,  without  which  requisite  they  shall 
not  be  admitted. 

Said  deposits  shall  be  returned  to  their  respective  owners  immedi- 
ately after  the  sale,  excepting  the  amount  deposited  by  the  successful 
bidder,  which  shall  remain  on  deposit  as  a  guaranty  that  he  will  com- 
ply with  the  terms  of  the  sale  and,  in  a  proper  case,  it  shall  be  applied 
to  the  purchase  price. 

ART.  1499.  The  execution  creditor  may  bid  at  the  sale  and  increase 
the  bids  without  requiring  him  to  make  the  deposit  mentioned  in  the 
foregoing  article. 

ART.  1500.  If  the  property  should  be  real  property,  situate  beyond 
the  judicial  district  where  the  proceedings  are  being  held,  the  sale 
may  be  held  simultaneously  in  both  courts,  at  the  instance  of  any  of 
the  parties,  which  circumstance  shall  be  stated  in  the  edicts. 


- 


304  LAW    OF    CIVIL    PROCEDURE. 

The  judge  may  also  order  the  double  and  simultaneous  sale,  even 
though  none  of  the  parties  sould  have  requested  it,  when,  in  his  judg- 
ment, it  be  necessary  in  view  of  the  value  or  special  conditions  of  the 
property. 

ART.  1501.  The  judge,  assisted  by  the  clerk  and  by  the  subordinate 
official  who  is  to  announce  the  sale  to  the  public,  shall  preside  at  the 
same.  The  proceedings  shall  begin  with  the  reading  of  a  description 
of  the  property  and  the  conditions  of  the  sale.  The  bids  shall  be 
publicly  offered  and  the  sale  shall  be  closed  by  the  judge  when  he 
considers  it  proper  and  when  no  higher  bids  are  received. 

Immediately  thereafter  the  amount  offered  and  the  name  of  the  suc- 
cessful bidder  shall  be  announced  to  the  public,  and  the  agreement 
and  acceptance  of  the  purchaser  shall  be  entered  upon  the  minutes, 
which  shall  be  signed  by  the  judge,  the  clerk  and  the  subordinate  offi- 
cial, and  by  the  parties,  if  present. 

ART.  1502.  Should  there  be  no  bidder,  the  execution  creditor  shall 
have  the  option  of  requesting  that  the  property  be  awarded  to  him  for 
two-thirds  its  appraised  value,  or  that  it  be  again  offered  at  public 
auction,  based  upon  a  reduction  of  25  per  cent  of  the  appraised  value. 

The  second  sale  shall  be  announced  and  held  in  the  same  manner  as 
the  first  one.1 

ART.  1503.  Should  there  be  no  bidders  at  the  second  sale,  the  plaintiff 
may  require  either  that  the  property  be  sold  to  him  at  two-thirds  of 
the  price  which  may  have  served  as  a  basis  for  the  second  sale,  or 
that  he  be  entrusted  with  the  management  thereof  for  the  purpose  of 
applying  the  profits  to  the  payment  of  the  interest  and  of  the  principal 
obligation. 

In  such  case  the  judicial  administration  which  may  have  been  insti- 
tuted in  accordance  with  the  provisions  of  article  1448  shall  cease.2 

ART.  1504.  If  the  plaintiff  does  not  agree  to  either  of  the  two 
measures  mentioned  in  the  foregoing  article  he  may  request  that  a  third 
auction  be  held  without  fixing  the  minimum  bid  to  be  accepted. 

In  such  case,  if  there  should  be  a  bidder  offering  two-thirds  of  the 
price  which  served  as  a  basis  for  the  second  auction,  and  who  accepts 
the  conditions  of  the  sale,  the  said  sale  shall  be  approved. 

If  a  bid  of  less  than  said  two-thirds  should  be  offered,  the  approval  of 

1  The  award  of  property  in  favor  of  the  execution  creditor  may  be  entered  in  the 
registry  of  property  without  the  necessity  of  a  public  instrument  by  virtue  of  a  judi- 
cial mandate  including  the  award,  as  article  1514  of  the  law  of  procedure  only  pre- 
scribes the  requisite  of  an  instrument  for  the  judicial  sale  at  public  auction  and  not 
for  the  award;  but  the  fact  that  a  public  instrument  has  been  executed  for  the  pur- 
pose of  making  the  award  is  not,  however,  an  obstacle  to  its  inscription,  as  the  deed 
is  an  instrument  which  can  be  recorded. — Decision  of  the  director-general  of  registers  of 
property  and  notaries  public  of  June  30,  1879. 

2  Orders  for  sale  and  the  other  orders  issued  for  the  fulfillment  theerof  are  not 
final.— Decision  of  July  12,  1878. 


LAW    OF    CIVIL    PROCEDURE.  305 

the  sale  shall  be  held  in  abeyance,  and  the  debtor  shall  be  informed  of 
the  price  offered,  who,  within  the  next  nine  days,  may  pay  the  creditor 
and  have  his  property  released,  or  may  procure  some  person  to 
increase  the  bid,  making  the  deposit  prescribed  in  article  1498. 

After  the  nine  days  have  elapsed  without  the  debtor  either  having 
paid  or  increased  the  bid,  the  sale  shall  be  approved  and  ordered  con- 
summated. 

ART.  1505.  If  a  higher  bid  should  be  offered  within  the  period  men- 
tioned, the  judge  shall  order  the  two  bidders  to  appear  before  him  at 
a  day  and  hour  fixed  and  to  compete  in  their  bidding,  and  he  shall 
award  the  property  to  the  person  making  the  most  advantageous 
proposition. 

If  the  first  bidder,  in  view  of  the  higher  bid  made  by  the  second, 
should  state  that  he  yields  the  estate,  the  proceeding  prescribed  in  the 
foregoing  paragraph  shall  not  be  observed. 

ART.  1506.  if  at  the  third  sale  a  bid  should  be  offered  which  is 
acceptable  in  so  far  as  the  price  is  concerned,  but  offering  payments  in 
installments  or  changing  some  other  condition,  the  creditor  shall  be 
informed  thereof,  and  shall  be  permitted  within  the  next  nine  days  to 
request  the  award  of  the  property  in  accordance  with  the  provisions 
of  article  1503,  and  if  he  should  not  make  use  of  this  right  the  sale 
shall  be  approved  in  accordance  with  the  terms  offered  by  the  bidder. 

AKT.  1507.  With  the  exception  of  the  cases  referred  to  in  the  three 
preceding  articles,  if  a  sale  is  made  at  any  of  the  auctions,  it  shall  at 
once  be  approved  by  the  judge,  who  shall  order,  if  the  property  should 
be  personal  or  live  stock,  that  it  be  delivered  to  the  purchaser  upon 
the  payment  of  the  purchase  price  within  three  days. 

For  said  purpose,  the  proper  order  shall  be  given  to  the  depositary 
and  an  entry  shall  be  made  upon  the  record  of  the  payment  of  the 
purchase  price  and  the  delivery  of  the  property,  a  receipt  for  which 
the  purchaser  shall  be  required  to  sign. 

ART.  1508.  If  the  property  should  be  real  property,  the  sale  thereof 
shall  be  approved  at  once.  If  a  double  sale  should  have  taken  place, 
it  shall  be  awarded  to  the  highest  bidder  as  soon  as  the  proceedings 
held  for  the  sale  in  the  other  court  are  received. 

If  the  two  bids  should  be  equal,  the  two  persons  offering  them  shall 
appear  before  the  judge  taking  cognizance  of  the  proceedings,  and 
compete  for  the  property,  for  which  purpose  said  judge  shall  fix  a  day 
and  hour,  and  shall  award  the  property  to  the  one  offering  the  higher 
price,  returning  to  the  other  the  deposit  he  may  have  made. 1 


1  The  proceedings  to  carry  out  an  order  for  sale  are  only  supplementary  to  the 
executory  action,  which  is  not  terminated  until  payment  is  made,  as  has  been 
declared  by  the  Supreme  Court,  and  the  right  of  the  debtor  as  well  as  of  the  creditor 
to  institute  an  ordinary  action  remains  unimpaired. — Decision  of  May  28,  1879. 

2901 20 


306  LAW   OF   CIVIL   PROCEDURE. 

ART.  1509.  After  the  sale  has  been  approved,  the  court  clerk  shall 
liquidate  the  incumbrances  upon  the  real  property  sold,  deducting 
from  the  price  the  capital  of  the  annuities  and  of  other  perpetual 
charges  only. 

This  liquidation  shall  be  referred  for  three  days  to  each  of  the  par- 
ties and  to  the  purchaser,  and  in  view  of  their  statements  the  judge 
shall  approve  the  same  without  further  proceedings,  or  shall  order 
that  the  proper  corrections  be  made. 

ART.  1510.  In  the  same  order  by  which  the  liquidation  of  the  charges 
is  approved,  the  purchaser  shall  be  ordered  to  deposit  the  amount 
appearing  from  the  liquidation  within  a  brief  period,  not  to  exceed 
eight  days. 

ART.  1511.  If  the  purchaser  should  not  deposit  the  price  within  the 
period  fixed,  or  the  sale  should  not  be  consummated,  through  some 
reason  attributable  to  him,  a  new  sale  shall  be  held,  and  said  purchaser 
shall  be  liable  for  the  reduction  in  the  amount  received  at  such  new 
sale  and  for  the  costs  which  may  be  incurred  on  this  account. 

ART.  1512.  After  the  price  has  been  deposited,  the  defendant  shall 
be  required  to  execute  within  three  days  the  proper  deed  of  sale  in 
favor  of  the  purchaser. 

Should  he  not  do  so,  or  should  he  be  prevented  from  executing  the 
deed  on  account  of  his  absence,  his  default,  or  for  any  other  reason 
whatsoever,  the  judge  shall  execute  said  deed  ex  officio. 

ART.  1513.  After  the  deed  has  been  executed  there  shall  be  delivered 
to  the  purchaser  the  titles  of  ownership,  and  the  property  shall  be 
placed  at  his  disposal,  the  necessary  orders  being  given  for  the  purpose. 

If  the  purchaser  should  so  request,  he  shall  be  introduced  as  the 
owner  of  the  property  to  such  persons  as  he  may  designate,  or  he 
shall  be  placed  in  possession  thereof.1 

ART.  1514.  If  the  execution  should  have  been  issued  at  the  instance 
of  a  second  or  third  mortgage  creditor,  the  amount  of  the  preferred 
mortgage  credits  for  which  the  estate  sold  is  liable  shall  be  deposited 
in  the  establishment  provided  therefor,  and  the  balance  shall  be  deliv- 
ered without  delay  to  the  execution  creditor,  if  the  same  should  not 
exceed  or  be  less  than  the  amount  of  his  credit. 

If  it  should  exceed  the  amount  of  his  credit  he  shall  be  given  the 
principal  and  interest,  and  after  the  taxation  of  costs  has  been  made 
and  approved,  as  well  as  the  proper  liquidation,  he  shall  be  paid  the 
balance  to  which  he  may  be  entitled.2 

xThe  sale  of  an  estate  made  judicially  for  the  purpose  of  satisfying  a  credit  secured 
by  the  same,  annuls  de  jure  the  other  mortgage  records  which  also  encumbered  it, 
and  the  estate  is  released  from  these  encumbrances  for  the  purchaser,  and  articles  105, 
133,  146,  and  156  of  the  mortgage  law  cannot  be  successfully  pleaded  thereagainst. — 
Decision  of  December  6,  1876. 

2  An  executory  action  having  been  instituted  at  the  instance  of  a  mortgage  creditor, 
and  the  estates  of  the  debtor  having  been  sold  at  the  instance  of  the  purchaser  of  the 


LAW    OF    CIVIL    PROCEDURE.  307 

ART.  1515.  If  the  execution  should  have  been  issued  by  virtue  of 
instruments  payable  to  bearer  secured  by  a  mortgage  recorded  against 
the  estate  sold,  and  if  there  are  other  similar  instruments  outstanding, 
the  net  amount  received  at  the  sale  shall  be  distributed  pro  rata  among 
all  of  them,  the  execution  creditor  receiving  his  share,  and  the  por- 
tions pertaining  to  the  other  holders  shall  be  deposited  until  their  titles 
are  cancelled,  for  which  purpose  the  procedure  established  in  article  82 
of  the  mortgage  law  may  be  employed.1 

AKT.  1516.  In  the  cases  mentioned  in  the  two  preceding  articles,  the 
records  of  the  mortgages  to  which  the  estate  is  subject  shall  be  can- 
celled at  the  instance  of  the  purchaser,  for  which  purpose  an  order 
shall  be  issued  stating  that  the  proceeds  from  the  sale  were  not  sufficient 
to  cover  the  claim  of  the  execution  creditor  and,  in  a  proper  case,  that 
the  amount  of  the  claim  of  the  preferred  creditor  has  been  deposited, 
or  the  balance,  should  there  be  any,  at  the  disposal  of  the  persons 
interested. 

ART.  1517.  If  the  estate  should  have  been  awarded  to  the  execution 
creditor  in  payment  of  his  claim,  it  shall  be  understood  as  having  been 
e  without  prejudice  to  prior  mortgages,  and  also  to  subsequent 

es  if  the  proceeds  from  the  sale  should  be  sufficient  to  satisfy  them. 
Should  the  proceeds  not  be  sufficient  therefor,  the  record  of  the  last 
ones  ma}r  be  cancelled,  in  accordance  with  the  provisions  contained  in 
the  foregoing  article. 


VA  \^\A. 

mad 

ones 
cu^, 


property  subject  to  the  execution,  which  estates  are  charged  with  other  prior  mort- 
gage liabilities,  and  if  the  amount  of  these  preferred  credits  should  be  deposited,  the 
records  relating  to  the  same  may  be  cancelled  without  further  proceedings,  provided 
that  the  deposit  is  made  in  the  establishment  provided  for  the  purpose,  which  can  not 
be  made  in  the  office  of  .the  court  clerk.  By  such  cancellation  the  preferred  credit- 
ors who  do  not  enjoy,  according  to  law,  the  right  to  intervene  in  the  compulsory 
process,  can  not  be  injured,  because  it  must  be  taken  into  consideration  that  the  last 
creditors  may  perhaps  have  to  be  satisfied  with  a  reduction  in  their  claims,  and  on  the 
contrary,  articles  1516  and  1518,  in  so  far  as  they  relate  to  the  preferred  creditors, 
start  from  the  supposition  that  the  amount  of  their  credit  has  been  deposited  in  full. 
Neither  are  there  grounds  to  plead,  for  the  purpose  of  refusing  to  make  such  cancel- 
lation, that  the  said  article  repeals  and  annuls  article  105  and  others  of  the  mortgage 
law,  because  if  the  object  of  every  mortgage  is  to  insure  to  the  creditor  that  his  claim 
will  be  paid,  this  object  is  attained  by  depositing  the  proper  amount  in  the  care  of  a 
court  and  at  the  disposal  of  the  legitimate  owner. — Decision  of  the  Director- General  oj 
Registries,  of  May  9,  1890. 

1  The  provisions  of  article  82  of  the  mortgage  law,  relating  to  the  procedure,  are  as 
follows: 

"  Records  made  to  account  for  sums  represented  by  instruments  executed  to  bearer 
can  not  be  cancelled  if  the  extinction  of  all  the  secured  obligations  can  not  be  proven, 
unless  a  copy  of  the  judicial  decree  declaring  the  extinction  of  said  obligations  is 
presented. 

' '  In  the  case  mentioned  in  the  preceding  paragraph,  in  order  to  issue  the  judicial 
decree,  four  calls  of  those  having  a  right  to  oppose  the  cancellation  must  be  made  by 
means  of  public  notices  and  advertisements  in  the  official  newspapers,  each  one  for 
the  period  of  six  months." 


308  LAW    OF    CIVIL    PROCEDURE. 

ART.  1518.  Unless  the  principal  and  interest  of  the  claim  of  the 
execution  creditor,  together  with  all  the  costs  of  the  execution,  are 
satisfied  in  full,  the  proceeds  of  the  sale  can  not  be  applied  to  any 
claims  other  than' those  which  have  been  declared  preferred  by  a  final 
judgment,  reserving  the  provisions  contained  in  articles  1514  and  1515. 

In  no  case  shall  the  costs  incurred  by  the  defense  in  an  executory 
action  be  preferred.1 

ART.  1519.  If,  in  accordance  with  the  provisions  of  article  1503,  the 
creditor  should  request  that  the  administration  of  the  property 
attached  be  entrusted  to  him,  the  judge  shall  order  that  it  be  delivered 
to  him  according  to  the  proper  inventory,  and  that  he  be  presented  as 
such  to  the  persons  which  the  creditor  himself  may  designate,  a  state- 
ment of  which  shall  be  entered  upon  the  record. 

ART.  1520.  The  creditor  and  the  debtor  may  by  private  agreements 
establish  the  conditions  under  which  the  former  is  to  administer  the 
property  attached,  and  the  manner  in  which  and  periods  when  he  is  to 
render  an  account  of  his  administration. 

Should  they  not  make  such  agreements,  it  shall  be  taken  for  granted 
that  the  property  is  to  be  managed  according  to  the  customs  of  the 
country,  and  that  the  creditor  is  to  render  yearly  accounts  of  his 
administration. 

In  such  case,  if  the  property  involved  be  rural,  the  debtor  may 
intervene  in  the  harvesting  of  the  crops,  in  person  or  through  a  duly 
empowered  representative. 

ART.  1521.  The  account  submitted  by  the  creditor  shall  be  referred 
to  the  debtor  for  a  period  of  fifteen  days,  and  a  copy  of  such  correc- 
tions as  the  latter  may  make  shall  be  delivered  to  the  creditor  in  order 
that  he  may  state  within  a  period  of  nine  days  whether  he  does  or 
does  not  agree  thereto. 

ART.  1522.  Should  he  not  agree  to  the  account,  the  judge  shall  cite 
him,  together  with  the  defendant,  to  appear  at  an  oral  hearing  within 
three  days,  at  which  hearing  the  pertinent  evidence  submitted  shall  be 
admitted.  A  reasonable  period  shall  be  fixed  by  the  judge,  not  to 
exceed  ten  days,  for  the  purpose  of  taking  the  evidence. 

The  proper  minutes  of  such  evidence  shall  be  made,  and  the  docu- 
ments which  may  be  presented  by  the  parties  shall  be  attached  to  the 
record. 

1  The  provisions  of  this  article  to  the  effect  that  the  costs  incurred  in  the  defense 
of  the  debtor  in  an  executory  action  shall  in  no  case  be  preferred  is  a  declaration 
for  a  special  case,  which  does  not  establish  a  general  rule  contrary  to  law,  because  the 
construction  of  the  law  does  not  permit  such  an  interpretation,  for  when  it  desired 
to  establish  the  preference  of  the  costs  this  was  done  in  article  1266,  relating  to  the 
cost  of  taking  the  inventory  and  that  of  the  judicial  proceedings  in  testamentary  and 
intestate  successions,  or  it  provided  for  the  effectiveness  of  the  preference  in  article 
1228,  in  which  it  ordered  that  the  trustees  should  be  provided  with  funds  from  the 
estate  to  meet  the  expenses  incurred  in  connection  therewith. — Decision  of  March  5, 
1874. 


LAW    OF    CIVIL    PROCEDURE.  309 

ART.  1523.  After  the  period  for  the  taking  of  evidence  has  expired, 
the  judge  shall  render  a  decision  on  or  before  the  fifth  day,  in  which 
he  shall  decide  what  may  be  proper  upon  the  approval  or  correction 
of  the  account  presented  by  the  creditor. 

This  decision  may  be  appealed  from  for  review  and  for  a  stay  of 
proceedings. 

ART.  1524.  All  other  questions  which  may  arise  between  the  cred- 
itor and  the  execution  debtor  in  regard  to  the  administration  of  the 
property  attached  shall  be  heard  and  determined  in  accordance  with 
the  procedure  established  for  incidental  issues. 

ART.  1525.  As  soon  as  the  proceeds  from  the  property  are  sufficient 
to  satisfy  the  claim  of  the  creditor  and  the  interest  thereon,  together 
with  the  costs,  the  management  and  possession  of  said  property  shall 
revest  in  the  debtor. 

ART.  1526.  The  execution  debtor  may  at  any  time  pay  the  balance 
due  upon  his  debt,  according  to  the  last  account  presented  by  the 
creditor,  in  which  case  the  debtor  shall  be  immediately  vested  with 
the  possession  of  his  property  and  the  latter  shall  be  relieved  from 
the  administration  thereof,  without  prejudice  to  rendering  a  general 
account  within  the  following  fifteen  days,  or  to  the  claims  to  which 
either  may  believe  himself  entitled. 

ART.  1527.  The  creditor  may  resign  from  the  administration  of  the 
perty  at  any  time  he  deems  proper,  and  request  that  it  be  again 
offered  at  public  sale,  based  upon  a  reduction  of  25  per  cent  of  its 
appraised  value,  and  if  there  should  be  no  bidder,  that  it  be  awarded 
to  him  at  two-thirds  of  said  value  in  so  far  as  necessary  to  satisf}^  his 
claim,  after  deducting  the  amounts  he  may  have  received  on  account. 

ART.  1528.  If  the  execution  has  been  issued  against  property  spe- 
cially mortgaged,  and  there  should  be  an  express  stipulation  in  the 
contract  to  the  effect  that  the  creditor  may  take  charge  of  the  admin- 
istration of  the  property  until  the  sale  thereof  takes  place,  the  plaintiff 
may  request  that  he  be  placed  in  possession  of  the  said  property. 

The  judge  shall  grant  this  petition,  without  a  hearing  of  the  debtor, 
if  said  clause  is  contained  in  the  mortgage  or  in  another  additional 
instrument,  without  prejudice  to  continuing  the  executory  action  at 
the  instance  of  the  creditor. 

The  provisions  of  articles  1519  et  seq.  shall  apply  to  this  case. 

ART.  1529.  All  the  appeals  which  may  be  proper  during  the  course 
of  the  proceedings  for  judicial  compulsion  in  executory  actions  shall 
be  allowed  for  a  review  of  proceedings  only. 

The  incidental  issues  mentioned  in  article  1524  shall  not  be  included 
in  these  provisions,  nor  such  other  incidental  issues  which  are  heard 
and  determined  in  a  separate  record,  or  which  have  no  reference  to 
the  sale  of  the  property  or  to  the  payment  of  the  creditor. 


™ 


310  LAW    OF    CIVIL    PROCEDURE. 

SECTION  III. — Interventions. 

ART.  1530.  Interventions  must  be  based  either  upon  the  ownership 
of  the  property  attached  as  belonging  to  the  attachment  debtor,  or 
upon  the  right  of  the  third  person  to  recover  his  credit  before  the 
execution  creditor  is  reimbursed.1 

ART.  1531.  Interventions  may  be  interposed  at  any  stage  of  the  exec- 
utory action. 

If  the  intervention  should  be  based  upon  ownership,  it  shall  not  be 
admitted  after  the  execution  of  the  deed  of  sale  or  the  consummation 
of  the  sale  of  the  property  involved,  or  its  award  in  payment  and 
delivery  to  the  execution  creditor,  reserving  the  right  of  the  third 
person  to  institute  the  action  which  he  may  deem  proper  against  any 
person  and  in  the  manner  which  may  be  proper. 

If  the  intervention  should  be  based  upon  a  preferred  right,  it  shall 
not  be  admitted  after  payment  has  been  made  to  the  execution  creditor.2 

1  The  violation  of  articles  1530  and  1541  can  not  serve  as  a  basis  for  an  appeal  for 
annulment  of  judgment,  as  the  supreme  court  has  repeatedly  declared,  as  their  pro- 
visions are  purely  formal. — Decision  of  December  19, 1883. 

As  the  supreme  court  has  repeatedly  declared,  the  intervenor  by  reason  of  owner- 
ship must  prove  his  rights  to  the  property  which  he  claims,  presenting  the  title 
upon  which  he  bases  the  same. 

In  order  to  institute  an  intervention  based  upon  ownership  it  is  not  necessary  that 
the  attachment  shall  have  been  recorded  in  the  registry  of  property. — Decision  of 
October  10, 1889. 

The  right  of  preference,  when  the  attachment  has  been  made  by  a  private  individ- 
ual, before  the  treasury  did  so,  must  be  heard  and  determined  by  the  ordinary 
courts. — Royal  decree  of  September  25, 1889. 

An  intervention  can  not  be  instituted  between  the  time  the  property  has  been 
awarded  and  delivered  to  the  execution  creditor. — Decision  of  April  15,  1884. 

Article  1532  of  the  law  of  procedure  has  no  further  scope  than  to  fix  the  two  only 
kinds  of  interventions  which  are  admissible. — Decision  of  July  4,  1884. 

A  true  intervention  can  not  be  instituted  in  an  executory  action  except  by  a  person 
juridically  different  from  the  execution  creditor  or  debtor. — Decision  of  December  22, 
1887. 

2  Demands  in  intervention  are  always  admissible  during  the  course  of  the  proceed- 
ings for  judicial  compulsion,  which  are  not  closed  until  the  execution  creditor  is  paid 
his  credit  in  full  or  the  property  sold  is  delivered  to  the  purchaser,  for,  as  the  supreme 
court  has  already  declared,  these  proceedings  are  inherent  in  the  executory  action 
and  are  supplemental  thereto. — Decision  of  April  £<?,  1881. 

The  object  of  demands  in  intervention  based  upon  ownership  is  to  claim  a  material 
thing  which  has  been  attached  at  the  instance  of  the  creditor,  and  therefore  can  be 
successful  only  when  the  intervenor  proves  the  ownership  of  the  thing,  instituting  a 
real  action  for  the  purpose  of  recovering  the  same.  Courts  can  not  decide  the  question 
of  a  preferred  right  in  a  demand  in  intervention  based  upon  ownership  and  vice 
versa. — Decision  of  April  13,  1882. 

It  is  a  recognized  legal  principle  that  demands  in  intervention  based  upon  owner- 
ship are  not  admissible  after  the  deed  of  sale  has  been  executed  or  the  sale  of  the 


LAW   OF    CIVIL    PROCEDURE.  311 

ART.  1532.  Complaints  in  intervention  shall  not  suspend  the  course 
of  the  executory  proceedings  of  which  they  are  an  issue. 

They  shall  be  heard  and  determined  in  a  separate  record  in  accord- 
ance with  the  proceedings  prescribed  for  the  declaratory  action  which 
may  be  proper  in  view  of  the  amount  involved,  in  accordance  with 
the  provisions  of  article  487. l 

ART.  1533.  When  the  intervention  is  based  upon  ownership,  as  soon 
as  a  final  order  of  sale  is  issued  in  an  executory  action,  the  proceedings 

property  involved  has  been  consummated  or  after  its  award  in  payment  and  delivery 
to  the  execution  creditor,  reserving  the  right  of  the  third  person  to  institute  an  action 
against  the  person  and  in  the  manner  which  he  may  deem  proper. — Decision  of  Decem- 
ber 27,  1883. 

When  a  demand  in  intervention  is  interposed  based  upon  the  ownership  of  attached 
estates,  and  the  chamber  of  the  audiencia  does  not  admit  the  same  because  it  con- 
siders that  the  title  on  which  it  is  based  is  null  and  void,  it  can  not  afterwards  be 
stated  as  a  basis  for  an  appeal  for  annulment  of  judgment  that  said  chamber  has  dis- 
possessed the  owner  of  what  belongs  to  him,  because  this  is  making  a  supposition 
of  the  question. — Decision  of  March  IS,  1884. 

A  decision  allowing  an  intervention  instituted  by  a  married  woman,  based  upon 
ownership,  for  the  purpose  of  recovering  some  property  attached  as  belonging  to  the 
conjugal  partnership,  when  it  appears  from  a  public  document  that  the  execution 
debtor  specially  received  the  property  belonging  to  his  wife  by  inheritance,  acting 
in  the  character  of  a  husband  and  not  by  virtue  of  the  power  of  attorney  granted  him 
to  represent  her  in  said  act,  at  a  time  when  the  formalities  prescribed  by  the  mort- 
gage law  were  not  necessary,  does  not  incur  in  an  error  of  law  or  of  fact,  nor  does  it 
violate  the  principle  of  law  that  actore  non  probante  reus  est  absolvendus. — Decision  of 
March  14,  1884. 

When  a  husband  states  in  a  public  instrument  that  he  binds  himself  to  execute  in 
favor  of  his  wife  a  dowry  instrument,  and  after  many  years  he  acknowledges  also 
in  a  public  instrument  that  he  had  previously  received  from  his  wife,  by  way  of 
appraised  dowry,  different  effects,  such  contracts  can  not  serve  as  valid  legal  grounds 
to  allow  the  action  for  ownership  instituted  by  her  in  an  intervention  based  there- 
upon, in  executory  proceedings  instituted  against  her  husband,  because  said  contracts 
can  serve  only  to  prove  the  preference  of  the  credits  and  not  the  ownership,  and  this 
may  be  said  with  better  grounds  when  the  identity  is  not  proven  of  the  property 
which  the  husband  acknowledges  to  have  received  and  which  it  appears  was 
attached  in  the  executory  proceedings,  and  a  decision  supporting  this  doctrine  does 
not  violate  the  law  of  these  contracts. — Decision  of  June  16,  1884. 

1  An  intervention  can  not  be  considered  in  an  action  if  the  person  instituting  the 
same  does  not  oppose  the  legitimate  and  acknowledged  credit  which  is  preferred 
according  to  law. — Decision  of  July  3,  1876. 

Interventions  are  always  admissible  during  the  course  of  the  proceedings  for  judi- 
cial compulsion  which  are  not  closed  until  the  execution  creditor  is  paid  his  claim  in 
full;  and  in  not  admitting  the  intervention  instituted  in  the  proper  manner  and  at 
the  proper  time,  the  provisions  of  this  article  are  violated  as  well  as  the  doctrine 
established  in  a  decision  of  December  24,  1861,  in  which  it  was  declared  that  an 
executory  action  is  not  closed  by  the  order  for  the  public  sale. — Decision  of  April  21, 
1881. 

The  violation  of  this  article  can  not  serve  as  a  basis  for  an  appeal  for  annulment 
of  judgment,  as  the  supreme  court  has  repeatedly  declared,  because  its  provisions 
are  purely  a  matter  of  form. — December  29,  1863. 


312  LAW    OF    CIVIL   PROCEDURE. 

tor  judicial  compulsion  shall  be  suspended  with  regard  to  the  property 
involved  in  the  intervention  until  a  decision  is  rendered  upon  the  latter.1 
ART.  1534.  If  the  intervention  should  be  based  upon  a  preferred 
right,  the  proceedings  for  judicial  compulsion  shall  be  continued  until 
the  sale  of  the  property  attached  takes  place,  and  the  proceeds  there- 
from shall  be  deposited  in  the  establishment  provided  for  the  purpose, 
in  order  that  payment  may  be  made  to  the  creditors  in  the  order  of 
preference  stated  in  the  judgment  rendered  upon  the  intervention.2 

1  The  provisions  contained  in  this  article  are  subordinated  to  the  prescriptions  of 
article  133  of  the  mortgage  law. — Decision  of  January  4,  1888. 

An  intervention  based  upon  ownership  does  not  suspend  the  executory  action,  and 
it  must  be  heard  and  determined  in  a  separate  record,  and  after  the  order  for  sale  has 
been  issued  the  proceedings  must  be  suspended  until  the  intervention  is  decided. — 
Decision  of  September  22,  1875. 

If  a  complaint  in  intervention  is  interposed  based  upon  ownership  in  an  executory 
action,  when  the  order  for  sale  has  been  agreed  to  or  issued,  the  proceedings  must  be 
suspended  in  accordance  wTith  the  provisions  of  this  article,  and,  therefore,  a  decision 
which  affirms  a  judgment  by  which  the  admission  was  denied  of  an  intervention 
interposed  without  containing  any  error  not  capable  of  being  corrected,  violates  the 
provisions  hereof. — Decision  of  December  16,  1880. 

In  order  to  be  considered  a  third  person  it  is  necessary,  in  accordance  with  the 
mortgage  law,  that  a  title  previously  recorded  be  presented,  and  after  the  third  person 
has  proven  his  ownership  any  other  title  of  possession  has  no  value,  even  if  the 
execution  creditor  should  have  it. — Decision  of  February  5,  1883. 

Interventions  based  upon  ownership  are  not  admissible  after  the  deed  has  been 
executed,  or  the  sale  of  the  property  has  been  consummated,  or  after  the  award 
thereof  in  payment  and  delivery  to  the  creditor,  as  jurisprudence  has  repeatedly 
stated. — Decision  of  October  8,  1888. 

The  provisions  of  this  article  with  regard  to  the  suspension  of  the  executory  pro- 
ceedings when  the  intervention  is  based  upon  ownership  is  limited  by  article  133  of 
the  mortgage  law  to  the  cases  included  therein. — Decision  of  January  4,  1888. 

2  Interventions  based  upon  a  preferred  right  must  be  based  on  the  right  of  the 
third  person  to  recover  his  credit  before  the  execution  creditor,  it  being  indispen- 
sable, therefore,  that  the  debtor  of  both  credits  be  one  and  the  same  person  or  judi- 
cial entity,  or  that  the  third  person  be,  as  well  as  the  execution  creditor,  a  creditor  of 
the  execution  debtor,  as  the  Supreme  Court  has  already  declared. — Decision  of  March 
30,  1883. 

The  debts  contracted  by  the  husband  during  marriage  for  and  in  the  exercise  of 
his  industry  or  profession,  with  which  he  contributed  to  the  support  of  his  family, 
can  not  be  considered  as  personal  and  private  debts  of  his  own,  nor  can  they  be 
excepted,  therefore,  from  payment  from  the  proceeds  and  income  derived  from  the 
property  belonging  to  the  wife,  which  are  liable,  as  is  that  of  the  husband,  for  the 
maintenance  of  the  marriage  charges;  therefore,  when  the  debt  claimed  is  of  this 
character,  and  for  its  payment  proceeds  from  property  belonging  to  the  wife  are 
attached,  the  jurisprudence  laid  down  by  the  Supreme  Court,  in  an  opinion  of  Feb- 
ruary 21,  1881,  and  others,  is  not  applicable  to  the  case,  and  it  can  not  be  violated 
by  a  decision  disallowing  the  intervention,  and  according  to  which,  in  order  that  a 
creditor  may  be  preferred  to  the  rights  of  the  wife  with  regard  to  the  proceeds  and 
rents  derived  from  the  paraphernal  property,  it  is  necessary  that  she  prove  and 
justify  in  the  action  that  the  debt  was  contracted  by  the  husband. — Decision  of 
June  9,  1883. 

A  decision  which  in  applying  the  principle  qui  prior  est  tempore  potior  est  jure, 


LAW    OF    CIVIL    PROCEDURE.  313 

ART.  1535.  With  the  complaint  in  intervention  must  be  presented 
the  title  on  which  it  is  based,  without  which  requisite  it  shall  not  be 
acted  upon.1 

ART.  1536.  In  no  case  shall  a  second  intervention  be  allowed, 
whether  based  upon  ownership  or  upon  a  preferred  right,  based  upon 
titles  or  rights  possessed  by  the  intervenor  at  the  time  of  interposing 
the  lirst  intervention. 

The  opposition  made  for  this  reason  to  the  admission  of  the  com- 
plaint may  be  heard  and  decided  according  to  the  procedure  estab- 
lished for  dilatory  exceptions,  and  if  it  should  be  sustained,  the  cost 
shall  be  taxed  against  the  intervenor. 

declares  the  preference  of  a  credit  of  an  intervenor,  does  not  violate  this  principle 
nor  that  of  pacta  sunt  servanda,  when  there  existing  no  agreement  between  the  two 
litigants  which  could  have  been  violated,  the  credit  of  the  intervenor  bears  a  prior 
date. — Decision  of  January  5,  1884. 

Although  it  is  true  that  a  married  woman  has  a  right  to  recover  her  marriage  por- 
tion with  preference  to  the  creditors  of  the  husband,  unless  the  latter  present  a  pre- 
ferred title,  in  order  that  her  preference  may  be  recognized,  it  is  necessary  that  she 
prove  that  the  property  in  question  was  delivered  to  the  husband,  and  if  this  is  not 
proven,  a  decision  which  disallows  an  intervention  based  upon  a  preferred  right,  the 
action  being  based  on  the  fact  that  the  property  in  question  has  this  character,  with- 
out any  violation  of  fact  or  of  law  being  alleged  in  legal  form  against  the  consideration 
of  the  evidence  made  by  the  adjudging  chamber,  can  not  be  appealed  from  for  an 
annulment  of  judgment. — Decision  of  February  30,  1884. 

A  chamber  which  gives  the  preference  over  a  credit  appearing  in  a  public  instru- 
ment to  one  of  later  date,  under  the  erroneous  impression  that  the  latter  is  pignora- 
tive,  notwithstanding  the  fact  that  the  creditor  did  not  have  possession  of  the  thing 
which  was  supposed  to  have  been  given  in  pledge,  incurs  a  legal  error,  and  therefore 
the  decision  may  be  appealed  from  for  annulment. — Decision  of  April  12,  1884. 

A  wife  who  obtains  for  herself  and  child  a  temporary  allowance  for  her  support, 
a  retention  of  the  salary  of  her  husband  being  ordered,  has  no  right  of  preference  for 
the  collection  thereof  over  another  creditor  of  the  husband,  when  said  spouses  live 
together  and  the  wife  has  not  instituted  an  action  for  a  definite  allowance  for  her 
support. — Decision  of  April  17,  1885. 

*An  intervention  based  upon  ownership  has  no  legal  support  if  the  title  upon  which 
it  is  based  is  not  recorded  in  the  registry  of  property  (Decision  of  April  28,  1870};  but 
this  is  understood  when  real  actions  involving  real  property  against  third  persons 
are  instituted. — Decision  of  May  28,  1889. 

Although,  according  to  this  article,  it  is  necessary  to  present  wTith  the  complaint  the 
title  upon  which  it  is  based,  it  does  not  provide,  as  does  article  1533,  for  the  cases 
mentioned  therein,  that  it  be  ignored  when  said  requisite  is  not  filled,  but  only  that 
it  be  not  acted  upon,  which  signifies  that  the  admission  thereof  is  to  be  suspended 
until  the  title  or  document  upon  which  it  is  based  is  presented. — Decision  of  February 
27,  1883. 

In  order  that  property  may  be  considered  as  dowry  property  for  the  purposes  of 
its  preference  in  the  collection  by  reason  of  an  intervention,  it  is  necessary  that  it  be 
proven  that  the  property  was  delivered  to  the  husband  as  dowry  property. — Decision 
of  April  30,  1885. 

A  ruling  which  only  conditionally  suspends  the  course  of  an  intervention  until  the 
document  referred  to  in  this  article  is  presented,  is  not  final. — Decision  of  March  27, 
1889. 


314  LAW    OF    CIVIL    PROCEDURE. 

'•  ART.  1537.  The  execution  creditor  and  the  execution  debtor  shall 
be  parties  to  the  intervention,  and  a  delivery  of  copies  of  the  coin- 
plaint  and  other  documents  shall  be  equivalent  to  a  summons  for  this 
action. 

Both  parties  must  answer  the  complaint  within  the  proper  period, 
to  be  counted  from  the  date  of  the  delivery  of  said  copies,  and  should 
they  not  do  so  nor  enter  their  appearance  in  the  proceedings,  the  com- 
plaint shall  be  considered  answered  by  the  person  in  default,  the  pro- 
ceedings being  continued  in  default.1 

ART.  1538.  The  execution  creditor  who  has  been  declared  in  default 
in  the  executory  action  shall  also  be  considered  in  default  in  the  inter- 
vention; but  if  his  domicile  were  known,  a  copy  of  the  complaint  and 
of  the  documents  attached  thereto  shall  be  served  upon  him. 

ART.  1539.  If  the  plaintiff  and  the  defendant  acquiesce  in  the  inter- 
vention, the  judge  shall,  without  further  proceedings,  order  the  record 
to  be  brought  before  him,  with  a  citation  of  the  parties,  and  render 
judgment. 

The  same  action  shall  be  taken  if  both  parties  fail  to  answer  to  the 
complaint. 

Said  judgment  may  be  appealed  from  for  a  review  and  for  a  stay 
of  proceedings. 

ART.  1540.  If  property  not  involved  in  an  intervention  based  upon 
ownership  is  attached,  the  proceedings  for  judicial  compulsion  may  be 
continued  against  the  same,  notwithstanding  the  intervention,  and  the 
proceeds  shall  be  delivered  to  the  execution  creditor  on  account  of  his 
claim. 

ART.  1541.  The  provisions  contained  in  this  section  shall  apply  to 
interventions  interposed  in  proceedings  for  the  execution  of  judgments 
and  in  any  other  proceedings  or  incidental  issue  in  which  the  attach- 
ment and  sale  of  property  takes  place. 

TITLE  XVI. 

COMPULSOBY  PEOCESS  IN  COMMERCIAL  AFFAIES. 

ART.  1542.  Proceedings  for  judicial  compulsion  in  commercial 
affairs  may  be  instituted  only  before  courts  of  first  instance  against 
the  debtors  of  the  following  classes: 

1.  The  consignees  to  whom  merchandise  may  have  been  delivered  or 
any  other  person  who  has  legally  received  the  same,  for  the  trans- 

JA  true  intervention  can  be  interposed  only  by  a  person  other  than  the  execution 
creditor  or  the  execution  debtor. — Decision  of  December  22,  1887. 

Even  though  the  execution  debtor  should  be  the  heir  of  the  debtor,  if  the  prop- 
erty should  not  have  been  derived  from  this  inheritance,  but  was  private  property, 
he  may  oppose  the  intervention,  because  he  is  a  different  person  as  the  heir  an 
the  owner  of  such  property. — Decision  of  March  28,  1885. 


LAW   OF    CIVIL   PROCEDURE.  315 

portation  charges  by  land  or  water,  provided  that  one  month  has  not 
elapsed  since  the  date  of  the  delivery. 

2.  Marine  insurance  underwriters  for  the  amount  of  the  losses  and 
damages  suffered  by  the  things  insured  in  the  risks  against  which  they 
are  insured. 

3.  The  insured  for  the  premiums  of  marine  insurance. 

4.  The  freighters  and  captains  of  vessels  for  the  provisions  fur- 
nished for  the  same  and  the  consignees  thereof  when  the  supplies  were 
furnished  by  their  order. 

5.  The  said  freighters  for  the  payment  of  salaries  due  the  ship's 
crew,  adjusted  by  month  or  by  voyage,  and  the  captains,  when  the  said 
freighters  are  not  at  the  place  where  the  payments  are  to  be  made. 

6.  Persons  transacting  through  brokers,  for  the  brokerage  due  in 
the  transaction. 

ART.  1543.  Judicial  compulsion  can  not  be  ordered  if  the  creditors 
who  request  the  same  do  not  prove  their  right  in  the  following  manner: 

Credits  for  freight  or  transportation,  with  the  original  bill  of  lading, 
signed  by  the  freighter,  and  the  receipt  for  the  merchandise  mentioned 
in  said  document. 

Those  arising  from  insurance  contracts,  whether  in  favor  of  the 
insured  or  of  the  underwriters,  by  the  public  instrument,  policy,  or 
private  contract,  according  to  the  manner  in  which  the  insurance  was 
written. 

The  supplies  furnished  for  the  provisioning  of  the  vessel,  with  the 
invoices  mentioning  the  value  of  the  supplies  furnished,  approved  by 
the  freighter,  captain,  or  consignee  by  whose  orders  the  creditor  may 
have  furnished  them. 

The  salaries  of  the  crew,  by  the  copies  of  the  contracts  entered  in 
the  ship's  account  book,  in  accordance  with  article  699  of  the  Code  of 
Commerce,  of  which  the  captain  must  furnish  a  copy  to  each  person 
interested,  with  a  memorandum  of  the  amount  due.  If  the  captain 
should  refuse  to  deliver  such  copies  he  shall  be  obliged  to  exhibit  the 
book,  from  which  a  transcript  shall  be  made  in  his  presence  of  the 
entries  relating  to  the  credit  claimed,  which  shall  be  considered  equiva- 
lent to  the  certificate  which  the  captain  should  have  issued. 

Brokerage  claims,  by  the  memoranda  of  the  contracts  or  transactions 
upon  which  they  are  based,  signed  by  the  debtor;  or  of  the  policies  of 
which  they  must  retain  a  copy;  and,  in  the  absence  of  either  document, 
by  the  copies  of  the  entries  made  in  the  register,  in  accordance  with 
the  provisions  of  articles  91,  92,  93,  94,  and  95  of  the  Code  of  Commerce. 

ART.  1544.  The  credit  with  regard  to  which  judicial  compulsion  is 
requested  must  appear  liquidated  in  the  instrument  presented.  Other- 
wise such  compulsion  shall  not  be  ordered  until  the  liquidation  is  made*, 
by  agreement  of  the  parties,  by  a  judicial  decision  or  by  arbitrators. 

ART.  1545.  If  the  document  presented  by  the  creditor  should  not  be 


316  LAW    OF    CIVIL    PROCEDURE. 

ti  public  instrument  or  a  policy  of  a  broker  but  a  private  contract  or 
another  document  which  does  not  import  a  confession  of  judgment 
without  the  acknowledgment  of  the  debtors,  said  acknowledgment 
must  precede  the  order  of  the  court  decreeing  the  judicial  compulsion. 
If  the  debtor  should  deny  the  authenticity  of  the  document,  the  cred- 
itor may  enforce  his  right  in  the  action  which  may  be  proper  in  view 
of  the  amount  involved. 

ART.  1546.  In  brokerage  claims  the  debtor  must  acknowledge  the 
signature  of  the  invoice  or  contract  which  proves  the  transaction;  and 
if  only  a  memorandum  of  the  entry  made  by  the  broker  should  have 
been  presented,  the  correctness  thereof  shall  be  verified  by  the  con- 
fession in  court  of  the  said  debtor,  or  by  his  commercial  books. 

ART.  1547.  Upon  the  presentation  of  the  instrument  importing  a 
confession  of  judgment,  the  creditor  shall  request  the  judicial  compul- 
sion in  a  written  petition,  the  form  of  which  shall  be  the  same  as  that 
established  for  executory  actions,  and  if  the  judge  should  consider 
that  it  is  legally  proper,  an  order  shall  be  issued  and  delivered  to  a 
bailiff,  in  order  that,  in  the  presence  of  the  court  clerk,  he  may 
demand  payment  of  the  claim  of  the  debtor,  and  if  he  should  not  make 
the  payment  at  once  he  shall  proceed  to  attach  his  property.  The 
provisions  of  articles  1440  et  seq.  of  this  law  shall  be  observed  in  the 
demand  for  payment  and  attachment. 

ART.  1548.  After  the  attachment  has  been  made,  the  debtor  shall  be 
cited  for  the  sale  of  the  property  attached  if  within  the  third  day 
he  should  not  plead  a  legitimate  exception  against  the  judicial 
compulsion. 

ART.  1549.  In  these  proceedings  the  following  exceptions  only  shall 
be  allowed: 

1.  Falsity  of  the  instruments. 

2.  Lack  of  personal  capacity  on  the  part  of  the  holder  thereof. 

3.  Payment. 

4.  Compromise. 

Whatever  exception  the  debtor  pleads,  it  must  be  interposed  in  writ- 
ing and  be  proven  within  the  three  days  designated  in  the  citation. 

ART.  1550.  The  exceptions  shall  be  proven  by  documents  or  by  the 
confession  in  court  of  the  creditor,  and  can  not  be  proven  by  any  of 
the  other  means  of  proof  which  would  be  proper  in  other  actions. 

ART.  1551.  If  the  debtor  should  present  a  written  objection,  it  shall 
be  attached  to  the  record  with  the  documents  accompanying  the  same. 
He  must  also  attach  a  copy  of  said  written  objection  for  delivery  to 
the  opposite  party. 

If  a  judicial  confession  of  the  creditor  should  be  requested  in  the 
same  instrument  with  regard  to  the  facts  on  which  the  exception  is 
based,  the  judge  shall  grant  the  request  at  once  and  shall  immediately 
thereafter  take  the  deposition,  if  possible,  or  otherwise,  within  the 


LAW    OF    CIVIL    PROCEDURE.  317 

shortest  period  of  time  possible,  without  the  delay  prejudicing  the 
['debtor  in  any  manner. 

AKT.  1552.  If  the  evidence  submitted  should  be  documentary  and 
.  a  comparison  of  the  documents  should  be  requested,  the  judge,  for 
this  purpose  only,  may  extend  the  period  fixed  in  article  1549  to 
ten  days. 

ART.  1553.  Should  no  objection  be  presented  by  the  debtor  within 
the  period  of  the  citation,  the  court  clerk  shall  make  a  record  of  this 
fact,  and  thereafter  he  shall  not  be  allowed  to  make  any  opposition 
whatsoever. 

ART.  1554.  After  the  evidence  has  been  taken,  or  after  a  statement  has 
been  entered  to  the  effect  that  no  opposition  has  been  made,  the  court 
clerk  shall  make  a  report  thereon  and  the  judge  shall  order  the  record 
brought  before  him,  with  a  citation  of  the  parties  for  judgment. 

If  any  of  the  parties  should  request  it  within  one  day  after  the  noti- 
fication, the  judge  shall  fix  a  day  for  the  hearing  within  the  four  days 
thereafter. 

The  parties  may,  at  the  time  of  the  hearing,  present  any  document 
which  they  may  deem  proper,  in  which  case  the  court  clerk  shall 
make  an  abstract  thereof  which  the  judge  shall  consider  in  rendering 
judgment. 

ART.  1555.  The  judge  shall  render  judgment  within  three  days, 
ordering  that  the  sale  of  the  property  attached  be  proceeded  with,  if 
the  debtor  should  not  have  opposed  the  complaint  or  should  not  have 
proved  his  exception,  otherwise  he  shall  revoke  the  order  in  which  he 
decreed  the  judicial  compulsion. 

In  the  former  case  the  costs  shall  be  imposed  upon  the  debtor,  and 
in  the  latter  upon  the  creditor. 

ART.  1556.  No  appeal  shall  lie  against  judgments  rendered  in  these 
proceedings,  the  parties  reserving  their  right  to  institute  such  ordi- 
nary action  as  may  be  proper. 

ART.  1557.  If  the  judgment  should  order  that  the  judicial  compul- 
sion be  carried  into  effect,  the  creditor  shall  be  obliged  before  he  is 
paid  his  claim,  and  if  the  debtor  should  request  it,  to  furnish  security 
sufficient  to  satisfy  any  judgment  which  may  be  rendered  in  any  action 
instituted  by  the  debtor. 

This  security  shall  be  cancelled  de  jure  if  no  action  is  instituted 
within  six  months. 

ART.  1558.  Credit  companies  or  institutions  legally  established, 
whose  business  it  is  to  make  mortgage  loans  or  loans  secured  by  real 
estate,  may  demand  the  payment  of  their  mortgage  credits  by  judicial 
compulsion  in  the  manner  prescribed  in  the  decree  law  of  February 
5,  1869.1 

1  See  the  decree  law  referred  to  in  Appendix. 


318  LAW    OF    CIVIL    PROCEDURE. 

TITLE  XVII. 

ACTIONS    OF    UNLAWFUL    DETAINEE. 

SECTION  1 . — General  provisions. 

ART.  1559.  The  cognizance  of  actions  of  unlawful  detainer  pertains 
exclusively  to  the  ordinary  jurisdiction. 

This  jurisdiction  extends  to  the  execution  of  the  judgment  which 
may  be  rendered,  without  the  necessity  of  any  assistance  therefor 
being  requested.1 

ART.  1560.  The  municipal  judges  of  the  place  or  district  in  \  hich 
the  estate  is  situate  shall  take  cognizance  in  first  instance  of  an  action 
of  unlawful  detainer  when  it  is  based  on  one  of  the  following  reasons: 

1.  The  termination  of  the  period  stipulated  in  the  contract. 

2.  The  expiration  of  the  period  of  the  notice  to  be  given  for  the 
conclusion  of  the  contract  in  accordance  with  law,  the  agreement  made, 
or  the  general  custom  of  each  town. 

3.  The  nonpayment  of  the  price  agreed  upon.2 

ART.  1561.  Judges  of  first  instance  who  are  of  competent  jurisdic- 
tion in  accordance -with  rule  13  of  article  63  shall  take  cognizance  of 
these  actions: 

1.  If  the  property  involved  is  a  commercial  or  manufacturing  estab- 

JSee  articles  1452  to  1582  of  the  civil  code  relating  to  leases. 

If,  during  the  course  of  an  action  of  unlawful  detainer  the  owner  himself  takes 
possession  by  his  own  authority  of  the  leased  estate,  he  is  obliged  to  indemnify  the 
lessee  for  any  loss  he  may  suffer  through  being  deprived  of  the  use  of  the  estate. — 
Decision  of  May  13,  1863. 

If  the  action  is  based  on  one  of  the  causes  mentioned  in  the  following  article  the 
municipal  judge  is  competent  to  take  cognizance  of  contracts  of  rabassa  morta. — Deci- 
sion of  April  17,  1886. 

2  When  municipal  judges  take  cognizance  of  these  actions,  it  is  optional  with  the 
parties  to  be  or  not  to  be  represented  by  a  solicitor  and  lawyer,  in  accordance  with 
number  2  of  articles  4  and  10  of  this  law. 

Article  11  in  its  second  paragraph  prescribes  that  in  case  the  services  of  an  attor- 
ney as  well  as  of  a  solicitor  are 'engaged,  if  there  should  bean  adjudgment  upon 
costs  in  favor  of  the  persons  who  have  engaged  them,  the  fees  and  charges  of  neither 
shall  be  included  therein. 

The  jurisdiction  of  municipal  judges  to  take  cognizance  in  first  instance  of  actions 
of  unlawful  detainer  is  limited  by  this  and  the  following  article  to  the  cases  in  which 
the  action  is  based  upon  the  expiration  of  the  term  agreed  upon,  the  expiration  of 
the  period  which  must  be  granted  for  the  termination  of  the  contract,  or  upon  non- 
payment.— Decision  of  July  9,  1884. 

As  the  action  which  the  lessor  can  institute  to  recover  the  payment  of  interest  d 
and  to  demand  an  ejectment  for  nonpayment  are  different,  the  institution  of  one 
before  the  other  does  not  signify  nor  can  it  signify  that  he  renounces  the  ejectment. — 
Decision  of  November  13,  1884. 

When  no  contract  exists  the  term  of  which  can  have  expired  and  in  which  a  pri 
has  been  fixed,  the  judge  of  first  instance  only  has  jurisdiction  to  take  cognizance 
the  action  of  unlawful  detainer.—  Decision  of  September  29,  1887. 


„ 

ne 


LAW    OF    CIVIL   PROCEDURE.  319 

ishment,  or  a  rural  estate,  the  lease  of  which  exceeds  5,000  pesetas 
per  annum,  even  though  the  action  is  based  on  one  of  the  causes  men- 
tioned in  the  foregoing  article. 

2.  If  the  action  with  regard  to  property  of  any  kind  is  based  upon 
a  cause  not  included  in  the  said  article.1 

ART.  1562.  All  persons  legally  entitled  to  the  possession  of  the 
estate  either  as  owners,  beneficiaries,  or  by  virtue  of  another  title  which 
gives  them  the  right  to  enjoy  the  estate,  and  their  representatives, 
shall  be  considered  legal  parties  to  institute  an  action  of  unlawful 
detainer. 

ART.  1563.  An  action  of  unlawful  detainer  may  be  instituted  against — 

1.  Tenants. 

2.  Managers,  custodians,  keepers,  or  watchmen  entrusted  by  land- 
lords with  their  property. 

3.  Tenants  at  sufferance,  or  any  other  persons  enjoying  the  estate, 
whether  rural  or  urban,  without  paying  rent  therefor,  provided  that 
one  month's  notice  to  vacate  has  been  served  upon  them.2 

ART.  1564.  In  no  case  shall  the  plaintiff  be  allowed  to  interpose  an 
ordinary  appeal  or  an  appeal  for  annulment  of  judgment  when  it  lies, 
if  he  does  not  prove  at  the  time  he  interposes  said  appeal  that  he  has 
paid  the  rent  due  and  that  which,  in  accordance  with  the  contract,  he 
is  to  pay  in  advance,  or  that  the  amount  of  the  same  has  been  deposited 
in  the  inferior  or  superior  court. 

In  such  case  the  plaintiff  shall  be  required  to  receive  the  amount  of 
such  rent  and  to  issue  a  receipt  to  the  tenant,  and  if  he  should  not 
desire  to  accept  the  same,  it  shall  be  deposited  in  the  proper  public 
establishment. 

The  payment  of  the  rent  shall  be  proven  with  the  receipt  of  the 
landlord,  or  of  his  manager  or  representative.3 

1  Municipal  judges  can  only  take  cognizance  of  actions  of  unlawful  detainer  when 
any  of  the  causes  specially  enumerated  in  article  1560  is  attendant,  and  in  all  other 
cases  the  judges  of  first  instance  are  of  competent  jurisdiction,  in  accordance  with  the 
provisions  contained  in  article  1561. — Decision  of  January  24,  1888. 

2  An  action  of  unlawful  detainer  lies  only  in  leases  for  the  purpose  of  dispossessing 
a  tenant  who  is  included  in  the  cases  of  the  law. — Decision  of  September  27,  1875. 

A  legal  error  is  incurred  by  a  judgment  which  does  not  admit  an  action  of  unlaw- 
ful detainer  instituted  by  the  person  who  appears  the  owner  of  the  estate,  against  a 
tenant  thereof  at  sufferance,  considering  exceptions  pleaded  by  said  tenant  for  the 
purpose  of  ignoring  the  right  of  ownership  of  the  plaintiff. — Decision  of  April  21, 1884- 

After  an  insolvent  has  been  deprived  of  the  use  and  disposal  of  his  property,  his 
tenancy  thereof  is  at  sufferance  and  an  action  of  unlawful  detainer  lies. — Decision 
of  October  30,  1885. 

3  These  appeals  do  not  lie  when  the  decision  unfavorable  to  the  defendant  becomes 
final,  on  account  of  his  not  having  deposited  the  rental  for  the  time  due  and  which 
is  to  fall  due  during  the  course  of  the  proceedings  of  said  appeal. — Decision  of 
February  9,  1885. 

This  article  has  been  amended  by  order  No.  92,  of  June  29,  1899,  for  Cuba,  which 
see  in  appendix. 


320  LAW    OF    CIVIL    PROCEDURE. 

ART.  1565.  If  the  tenant  does  not  comply  with  the  provisions  of  the 
foregoing  article,  the  decision  shall  be  considered  final  and  its  execu- 
tion shall  be  proceeded  with. 

The  appeal  for  annulment  of  judgment  taken  by  the  tenant  shall 
also  be  dismissed,  at  any  stage  thereof,  if  during  the  pendency  of  the 
same  he  should  fail  to  pay  the  installments  which  may  fall  due  or 
which  he  may  be  required  to  pay  in  advance. 

AKT.  1566.  None  of  the  periods  of  time  prescribed  in  this  title  for 
the  hearing  and  determination  of  actions  of  unlawful  detainer  and  the 
execution  of  the  judgment  can  be  extended,  and  after  they  have 
expired  any  right  which  may*not  have  been  utilized  shall  be  consid- 
ered lost,  without  the  necessity  of  petitions  for  judicial  compulsion  nor 
of  entering  default. 

ART.  1567.  Judges  of  first  instance  shall  observe  the  provisions 
established  for  audiencias  in  title  21  of  this  book,  with  regard  to  the 
preparation  and  admission,  in  a  proper  case,  of  appeals  for  annulment 
of  judgment  which  the  parties  may  desire  to  take  against  the  judg- 
ments rendered  by  them  in  actions  of  this  kind. 

SECTION  II. — Actions  of  unlawful  detainer  before  municipal  court*. 

ART.  1568.  In  cases  in  which,  in  accordance  with  the  provisions  of 
article  1560,  it  pertains  to  municipal  judges  to  take  cognizance  in  orig- 
inal instance  of  actions  of  unlawful  detainer,  this  action  shall  be  heard 
and  determined  in  accordance  with  the  procedure  established  for  oral 
actions,  with  the  modifications  contained  in  the  following  articles. 

ART.  1569.  The  plaintiff  shall  draft  his  complaint  in  accordance  with 
the  provisions  of  article  719,  attaching  the  copy  or  copies  prescribed 
therein.1 

ART.  1570.  After  the  presentation  of  these  documents,  the  judge 
shall  order  the  plaintiff  and  the  defendant  to  be  summoned  for  the  oral 
action,  fixing  a  day  and  hour  therefor,  which  can  not  be  changed  with- 
out sufficient  cause  being  alleged  and  approved  by  the  judge. 

Such  day  must  be  within  the  six  days  following  the  presentation  of 
the  documents,  but  at  least  three  days  must  intervene  between  the 
action  and  the  citation  of  the  defendant.2 

The  writ  of  citation  for  the  appearance  shall  be  drafted  immediately 
after  the  copy  of  the  complaint,  which  shall  be  delivered  to  the 
defendant  in  the  manner  prescribed  in  article  721. 

ART.  1571.  The  citation  shall  be  served  upon  the  plaintiff  in  person. 
If  such  service  can  not  be  made  after  it  has  been  twice  attempted  at 

1A  part  owner  can  not  by  himself,  and  without  the  authority  of  the  other  part 
owners,  bring  an  act  on  of  unlawful  detainer  against  a  tenant. — Decision  of  January 
25,  1886. 

2  If  three  days  at  least  do  not  intervene,  this  article  is  violated  and  an  appeal  lies.- 
Decision  of  February  £,  1886. 


LAW    OF    CIVIL    PROCEDURE.  321 

an  interval  of  six  hours,  the  writ  citing  him  for  the  action  shall  be 
left  at  his  residence;  it  shall  be  delivered  to  his  nearest  relative,  or  to 
u  member  of  his  household  or  a  servant,  over  14  years  of  age,  who  may 
be  found  in  the  same;  and  if  no  one  should  be  found,  to  his  nearest 
neighbor. 

At  the  same  time  an  ordinary  copy  of  the  complaint  shall  be  delivered 
to  the  defendant  or  to  the  person  to  whom  the  writ  of  citation  is 
delivered. 

ART.  1572.  If  the  defendant  is  not  found  at  the  place  where  the 
action  is  pending,  or  should  he  not  have  his  domicile  there,  the  cita- 
tion shall  be  delivered  to  his  attorney  in  fact;  if  he  should  not  have 
ono,  to  the  person  entrusted  in  his  name  with  the  care  of  the  property, 
and  if  there  should  be  no  such  person  the  proper  letters  rogatory, 
or  order  for  his  citation,  shall  be  issued  to  the  judge  of  his  town  or 
residence. 

In  the  latter  case,  the  judge  shall  allow  a  sufficient  time,  in  view  of 
the  distances  and  difficulties  of  communication,  for  tire  appearance  in 
the  oral  action.  This  period  can  not  exceed  one  day  for  every  30 
kilometers,  without  the  total  period  allowed  for  appearance  exceeding 
twenty  days. 

ART.  1573.  In  the  cases  referred  to  in  the  foregoing  articles  the 
defendant  shall  be  warned  when  he  is  cited,  that  if  he  does  not  appear 
in  person  or  through  a  duly  empowered  representative,  he  shall  be 
dispossessed  without  a  further  citation  or  hearing. 

ART.  1574.  If  the  defendant  should  not  have  a  fixed  domicile  or  his 
whereabouts  is  unknown,  the  writ  of  citation  for  appearance  at  the 
oral  trial  shall  be  posted  upon  the  bulletin  board  of  the  court,  with  the 
warning  mentioned  in  the  foregoing  article. 

ART.  1575.  If  a  defendant  who  is  at  the  place  where  the  action  is 
pending  should  not  appear  at  the  hour  fixed,  he  shall  be  cited  again  in 
the  same  manner  for  the  following  day,  and  he  shall  be  warned  at  the 
time  of  the  second  service  if  he  should  be  found,  or  otherwise  in  the 
writ  left  for  him,  that  if  he  should  not  appear  in  the  action,  it  shall  be 
considered  that  he  agrees  to  the  dispossession,  and  he  shall  be  ejected 
from  the  estate  without  any  further  citation  or  hearing. 

The  second  citation  need  not  be  served  upon  absentees. 

ART.  1576.  If  the  defendant  should  not  appear  after  the  second  cita- 
tion, when  he  is  found  at  the  place  where  the  action  is  pending,  or  an 
absent  defendant,  after  the  first  citation,  the  judge  shall  immediately 
render  judgment  ordering  the  dispossession  and  warning  the  defend- 
ant that  if  he  does  not  vacate  the  premises  within  the  proper  period  of 
those  mentioned  in  article  1594,  he  will  be  ejected  therefrom. 

ART.  1577.  If  the  parties  appear  at  the  oral  trial  they  may,  in  their 
order,  make  the  statements  and  offer  the  testimony  which  they  may 
deem  proper  at  the  time  thereof. 
2901 21 


322  LAW  OF  CIVIL  PROCEDURE. 

After  all  the  evidence  considered  pertinent  has  been  admitted,  it 
shall  be  taken  within  the  period  fixed  by  the  judge,  which  can  not 
exceed  six  days. 

When  the  action  of  unlawful  detainer  is  based  upon  the  nonpayment 
of  the  price  stipulated,  no  other  evidence  but  judicial  confession  shall 
be  admissible,  or  the  document  or  receipt  showing  that  said  payment 
has  been  made. 

ART.  1578.  Upon  the  day  following  the  taking  of  evidence  it  shall 
be  attached  to  the  record  and  the  judge  shall  cite  the  parties  for  the 
continuation  of  the  oral  action  on  the  following  day,  when  he  shall 
hear  them  or  the  person  they  may  select  to  speak  in  their  name,  a 
statement  of  which  shall  be  entered  upon  the  record. 

ART.  1579.  The  judge,  within  the  three  days  following  the  termina- 
tion of  the  oral  action,  shall  render  judgment  granting  or  disallowing 
the  prayer  for  dispossession,  and  in  the  former  case  warning  the 
defendant  that  he  will  be  ejected  if  he  does  not  vacate  the  premises 
within  the  periods  established  in  article  1594. 

Notice  of  this  judgment  shall  be  given  to  the  defendant  either  in 
person  or  by  writ,  if  he  should  reside  at  the  place  where  the  action  was 
held.  In  other  cases  said  notice  shall  be  posted  upon  the  bulletin 
board  of  the  court  room,  and  it  shall  have  the  same  effect  as  if  it  had 
been  personally  served. 

ART.  1580.  The  judgment  shall  include  the  taxation  of  costs  against 
the  unsuccessful  party.1 

ART.  1581.  The  judgment  may  be  appealed  from,  both  for  review 
and  for  a  stay  of  proceedings,  to  the  judge  of  first  instance  of  the  judi- 
cial district  within  three  days,  either  by  petition  or  by  personally 
appearing  for  the  purpose. 

1  Leases  are  considered  as  extended  for  one  year  under  the  same  conditions,  when 
the  lessee  remains  for  three  or  more  days  on  a  rural  estate,  with  the  consent  of  the 
owner,  after  the  time  fixed  in  the  contract.  During  this  extension  ,the  owner  is 
obliged  to  leave  the  lessee  in  the  enjoyment  of  the  thing  leased,  or  indemnify  him 
for  the  losses  and  damages  which  he  may  cause  him  and  even  for  the  profits  he  may 
have  caused  him  to  lose. — Decision  of  December  26,  1869. 

A  person  who  sells  a  leased  estate  before  the  expiration  of  the  lease,  is  obliged  to 
sustain  or  to  indemnify  the  lessee  for  the  losses  and  damages  he  may  suffer  by  the 
dispossession. — Decision  of  July  1,  1870. 

The  proceedings  for  dispossession  in  municipal  courts  include  an  express  adjudg- 
ment upon  costs  against  the  unsuccessful  party,  for  which  reason,  the  court  of  first 
instance,  when  he  takes  the  place  of  the  municipal  judge,  must,  in  reversing  the 
judgment  of  the  latter,  impose  the  costs  incurred  in  the  last  court  upon  the  appellant. 
But  as  this  precept  does  not  apply  to  the  proceedings  held  before  the  court  of  first 
instance,  the  appellee  must  not  be  taxed  the  costs. — Decision  of  September  27,  1886. 

The  provisions  contained  in  article  1580  of  the  law  relate  clearly  to  the  costs  of  the 
first  instance,  that  is  to  say  to  those  incurred  before  the  municipal  court,  and  does 
not  apply  to  the  costs  of  the  second  instance,  which  are  governed  by  law  2,  title  19, 
book  11,  of  the  Novisima  Recopilacion* 


? 


LAW    OF    CIVIL    PROCEDURE.  323 

If  the  appeal  should  have  been  taken  by  the  defendant,  the  judge 
shall  not  admit  it  if  he  should  not  have  complied  with  the  provisions 
of  article  1564:. 

ART.  1582.  After  the  appeal  has  been  allowed,  the  record  shall  be 
ent  within  twenty -four  hours  to  the  judge  of  first  instance  of  the 

dicial  district,  with  a  summons  of  the  parties  to  appear  within  eight 
days,  if  they  should  desire  to  do  so,  in  order  to  allege  their  rights. 

ART.  1583.  If  the  appellant  should  not  appear  within  said  period  the 
judge  shall  <',/•  otfido  proceed  as  prescribed  in  article  733. 

If  he  should  appear  in  time,  a  record  shall  be  made  thereof,  and  the 
judge  of  first  instance  shall,  without  delay,  order  that  the  parties  be 
cited  to  appear  within  three  days. 

This  citation  shall  bo  personally  served  upon  those  who  may  have 
appeared  in  the  second  instance,  and  upon  the  others  by  posting  the 
same  upon  the  bulletin  board  of  the  court.1 

ART.  1584.  Upon  the  day  and  hour  fixed  for  the  appearance,  the 
judge  shall  hear  the  parties  or  their  solicitors,  if  they  should  appear, 
minutes  of  said  hearing  being  made;  and  without  admitting  any  other 
evidence  than  that  which,  having  been  submitted  in  the  first  instance 
could  not  be  taken,  he  shall  render  judgment  within  three  days  there- 
after. 

ART.  1585.  Against  the  judgment  in  second  instance  referred  to  in 
the  foregoing  article,  no  other  appeal  shall  lie  but  an  appeal  for  annul- 
ment of  judgment  for  breach  of  law  and  form,  if  the  annual  rent  of 
the  estate  involved  should  exceed  5,000  pesetas.  Should  it  not  exceed 
this  sum,  an  appeal  for  annulment  of  judgment  by  reason  of  breach -of 
form  only  shall  be  proper.2 

ART.  L5St).  Upon  the  expiration  of  the  legal  period  without  the  in- 
terposition or  preparation  of  the  appeal  for  annulment  of  judgment, 
the  records  of  the  proceedings  shall  be  returned  to  the  municipal  court 
with  an  abstract  of  the  judgment  for  its  execution. 

SECTION  III. — Actions  of  unlawful  detainer  before  courts  of  first 
instance. 

ART.  1587.  When  the  action  of  unlawful  detainer  is  based  upon  one 
of  the  causes  and  is  brought  for  one  of  the  reasons  mentioned  in  sub- 
division 1  of  article  1561,  it  shall  be  heard  and  determined  in  an  oral 
action  according  to  the  same  procedure  which  is  prescribed  in  the 

1  After  the  parties  have  been  cited  for  appearance  before  the  court  as  prescribed  in 
article;  1585  of  the  law  of  civil  procedure,  the  judge  in  afterwards  rendering  judg- 
ment without  a  citation  of  the  same,  has  not  violated  any  legal  provisions  whatsoever, 
because  the  law  does  not  require  a  previous  citation  for  judgment  in  proceedings  of 
unlawful  detainer  held  before  municipal  judges. — Decision-  of  Fehnutri./  'J,  /<VX7. 

2 In  an  appeal  against  a  judgment  rendered  in  an  action  of  unlawful  detainer  it  is 
necessary  to  present  the  document  which  shows  the  payment  of  the  rent  or  the 
deposit  thereof. — Decision  of  October  9,  1883. 


324  LAW    OF    CIVIL    PROCEDURE, 

foregoing  section  for  those  held  before  municipal  judges,  without  any 
other  modifications  but  the  following: 

1.  The  complaint  shall  be  submitted  in  writing  upon  the  proper 
stamped  paper,  and  drafted  in  accordance  with  the  form  prescribed 
for  complaints  in  ordinary  actions. 

2.  The  oral  trial  shall  be  held  within  eight  days  following  that  on 
which  the  complaint  was  presented,  but  four  days  at  least  must  inter- 
vene  between   the   holding   of   said    trial    and    the   citation   of    the 
defendant. 

ART.  1588.  When  the  complaint  is  based  upon  the  violation  of  any 
of  the  conditions  stipulated  in  the  lease  contract,  not  included  in  those 
mentioned  in  article  1560,  it  shall  also  be  heard  and  decided  in  an  oral 
trial  before  the  judge  of  first  instance,  in  accordance  with  the  provi- 
sions contained  in  the  preceding  article. 

ART.  1589.  The  judgment  rendered  by  the  judge  of  first  instance  in 
the  cases  referred  to  in  the  two  preceding  articles  may  be  appealed 
from  for  review  and  for  a  stay  of  proceedings. 

After  the  appeal  has  been  allowed,  provided  that  the  requisites  pre- 
scribed in  article  1564  have  been  observed,  if  the  defendant  has  taken 
the  appeal,  the  record  of  proceedings  shall  be  forwarded  without  delay 
to  the  appellate  court,  at  the  cost  of  the  appellant,  with  a  summons  of 
the  parties  to  appear  within  a  period  of  ten  days. 

ART.  1590.  The  appeal  shall  be  heard  and  determined  in  these  cases 
in  accordance  with  the  procedure  established  by  articles  704  et  seq.  for 
appeals  in  actions  of  lesser  import. 

ART.  1591.  When  the  action  of  unlawful  detainer  is  based  upon  any 
cause  other  than  those  mentioned  in  articles  1560  and  1588,  the  judge 
of  first  instance  shall  also  cite  the  parties  to  appeal-  at  an  oral  trial,  the 
provisions  contained  in  article  1587  being  observed. 

If  upon  the  appearance  of  the  defendant  he  and  the  plaintiff  should 
agree  as  to  the  facts,  the  judge  shall  render  judgment  without  further 
proceedings,  and  shall  order  the  dispossession  if  he  considers  it  proper. 

Should  the  defendant  not  appear,  he  shall  be  considered  to  agree  to 
the  facts  stated  in  the  complaint,  and  the  said  judgment  shall  be  ren- 
dered in  his  default. 

This  judgment  may  be  appealed  from  both  for  review  and  for  a  stay 
of  proceedings,  and  the  provisions  of  the  two  preceding  articles  shall 
be  applied. 

ART.  1592.  In  the  case  of  the  foregoing  article,  if  the  defendant 
should  oppose  the  dispossession  in  the  oral  trial  and  should  deny  the 
allegations  of  the  complaint,  he  shall  make  a  statement  of  his  denials 
and  of  the  reasons  upon  which  they  are  based. 

After  such  statement  is  entered  in  the  record,  the  judge  shall  close 
the  proceedings  and  shall  refer  the  complaint  to  the  defendant  for  a 


01 

, 


LAW    OF    CIVIL    PROCEDURE.  325 

period  of  six  days,  the  action  being  continued  thereafter  according  to 
the  proceedings  and  with  the  remedies  established  for  incidental  issues. 

SECTION  YV  .—Execution  of  judgments  in  actions  of  unlawful  detainer. 

ART.  1593.  Judgments  rendered  in  actions  of  unlawful  detainer  shall 
be  executed  by  the  judge  who  has  taken  cognizance  of  said  action  in 
first  instance. 

The  appeals  taken  during  the  execution  shall  be  admitted  for  a  review 
of  the  proceedings  only. 

ART.  1594.  As  soon  as  the  judgment  ordering  the  dispossession  is 
final,  and  after  the  record  has  been  received  by  the  lower  court  in 
case  of  an  appeal,  the  execution  thereof  shall  be  proceeded  with  at  the 
instance  of  the  plaintiff,  and  the  judge  shall  order  that  the  defendant 
be  admonished  that  he  shall  be  ejected  from  the  premises  if  he  does 
not  vacate  the  same  within  the  following  periods  of  time: 

In  eight  days,  if  a  residence  is  involved,  actually  occupied  by  the 
defendant  or  his  family. 

In  fifteen  days,  if  a  commercial,  manufacturing,  traffic,  or  recreation 
establishment  is  involved. 

In  twenty  days,  if  a  farm  or  other  rural  property  is  involved  which 

ntains  farm  buildings,  and  at  which    guards,  overseers,  or  other 

rvants  are  constantly  employed. 

ART.  1595.  If  the  dispossession  should  relate  to  a  rural  estate  not 
possessing  any  of  the  conditions  mentioned  in  the  last  paragraph  of 
the  foregoing  article,  or  to  a  residence  not  occupied  by  the  defendant 
or  by  his  family,  the  ejectment  shall  take  place  at  once. 

ART.  1596.  The  order  for  the  execution  of  the  judgment  and  the 
jectment,  in  a  proper  case,  shall  be  served  upon  the  defendant  in  the 
same  manner  as  was  the  citation,  if  he  should  be  at  the  place  where 
the  action  is  pending. 

In  other  cases  the  service  shall  be  made  by  posting  the  same  upon  the 
bulletin  board  of  the  court,  and  it  will  have  the  same  effects  as  if  it  had 
been  personally  served. 

ART.  1597.  After  the  period  respectively  prescribed  in  article  1594 
has  elapsed  without  the  tenant  having  vacated  the  premises,  he  shall 
be  ejected  therefrom  without  any  postponement  or  consideration  of 
any  kind  whatsoever,  and  at  his  cost. 

ART.  1598.  The  claims  of  the  tenant  that  the  workings,  plantings, 
or  any  other  thing  which  can  not  be  removed  from  the  estate  is  his 
property,  shall  not  be  an  obstacle  to  the  ejectment.  In  such  case  a 
record  shall  be  made  of  the  kind,  extent,  and  conditions  of  the  things 
claimed. 

ART.  1599.  At  the  time  the  ejectment  is  carried  into  effect  sufficient 
salable  property  shall  be  retained  and  deposited  which  may  be  found 


326  LAW    OF    CIVIL    PROCEDURE. 

on  the  premises  to  cover  the  costs  of  the  action  and  the  subsequent 
proceedings  which  may  be  taxable  against  the  defendant. 

ART.  1600.  There  shall  also  be  retained  and  seized  at  said  act,  if  the 
plaintiff  should  so  request,  the  property  which  may  be  necessary  to 
cover  the  amount  of  the  rent  or  lease  which  may  be  owed  by  the 
defendant,  or  the  damages  which  he  may  have  caused  to  the  proper tv. 

This  seizure  shall  become  null  dejure*  if  within  the  next  twenty  days 
the  plaintiff  does  not  file  the  proper  petition  requesting  the  ratification 
thereof,  in  accordance  with  the  provisions  for  provisional  seizures. 

ART.  1601.  If  the  defendant  should  not  pay  the  costs  at  once,  the 
sale  of  the  property  seized  shall  be  proceeded  with,  after  an  appraise- 
ment thereof  by  the  expert  or  experts  which  the  judge  shall  appoint. 

The  alienation  shall  be  made  in  the  manner  prescribed  for  proceed- 
ings for  judicial  compulsion  in  executory  actions. 

ART.  1602.  In  the  cases  in  which  the  defendant  shall  have  claimed 
workings,  plantings,  or  anything  else  which  may  have  remained  on 
the  estate,  the  appraisement  thereof  shall  be  made  by  experts  appointed 
in  the  manner  prescribed  for  the  appraisal  of  property  in  executory 
actions. 

ART.  1603.  After  said  appraisement  has  been  made,  the  defendant 
may  request  that  he  be  credited  with  the  amount  at  which  the  prop- 
erty was  appraised  which  he  believes  himself  entitled  to. 

ART.  1604.  If  the  defendant  should  limit  his  claim  to  the  amount  of 
the  appraisal,  and  said  amount  should  not  exceed  1,000  pesetas,  the 
municipal  judge  who  took  cognizance  of  the  a?ction  of  unlawful, 
detainer  shall  take  cognizance  thereof  in  an  oral  trial. 

Otherwise  the  judge  of  first  instance  of  the  judicial  district  shall  also 
also  take  cognizance  thereof  in  an  oral  trial. 

ART.  1605.  In  the  other  two  cases  referred  to  in  the  foregoing 
article,  the  oral  trial  shall  be  held  in  the  manner  prescribed  for  the 
action  of  unlawful  detainer. 

The  judgment  rendered  at  first  instance  may  be  appealed  from  both 
for  review  and  for  a  stay  of  proceedings,  which  appeal  shall  be  heard 
and  determined  in  the  manner  established  for  appeals  in  said  action  in 
this  title. 

ART.  1606.  If  the  lessee  should  extend  nis  claim  to  include  an 
indemnification  for  losses  and  damages  or  improvements,  not  included 
among  those  mentioned  in  article  1602,  this  claim  can  not  be  heard 
and  determined  according  to  the  procedure  established  in  the  fore- 
going articles,  and  he  shall  reserve  his  right  to  institute  the  proper 
action. 


LAW    OF    CIVIL    PROCEDURE.  327 

TITLE  XVIII. 

TEMPORARY  MAINTENANCE.1 

ART.  1007.  A  person  who  considers  himself  entitled  to  demand  pro- 
visional maintenance  must  present  with  his  complaint  the  documentary 
evidence  establishing"  his  right  thereto. 

If  his  right  should  be  one  granted  him  by  law,  the  documents  shall 
be  presented  which  prove  the  degree  of  relationship  between  the  plain- 
tiff and  the  defendant,  or  the  circumstances  which  establish  the  right 
to  said  maintenance,  and  an  offer  shall  be  made  to  complete  the  proof 
by  the  evidence  of  witnesses,  if  it  should  be  necessary. 

He  shall  also  offer  to  prove  the  approximate  value  of  the  estate, 
income,  salaries,  or  pensions  which  the  defendant  owns  or  enjoys,  and 
the  necessities  of  the  plaintiff. 

In  addition  copies  shall  be  attached  thereto,  drafted  on  ordinary 
paper,2  of  the  complaint  and  of  the  documents. 

'The  law  of  1855  considered  the  granting  of  provisional  maintenance  as  an  act 
of  voluntary  jurisdiction,  but  at  the  present  time  it  is  properly  the  object  of  a  con- 
tentious proceeding,  although  brief.  Formerly  an  appeal  for  annulment  of  judgment 
was  not  allowed  from  decisions  rendered  in  proceedings  of  this  character.  (Decisions 
of  June  14,  1865,  October  22,  1866,  and  June  8,  1869.)  But  it  is  authorized  at  the 
nt  time  by  article  1688,  subdivision  3,  of  the  law  of  civil  procedure, 
person  renouncing  his  right  to  an  inheritance  can  not  afterwards  base  a  claim 

r  maintenance  thereon. — Decision  of  November  29,  1886. 

A  person  who  does  not  prove  his  character  of  a  natural  child  can  not  found  a  claim 
for  maintenance  thereon. — Decision  of  November  29,  1886. 

The  provisions  relating  to  natural  maintenance  can  not  be  applied  to  the  civil, 
which  is  to  be  furnished  in  accordance  with  the  obligation  contracted. — Decision  of 
January  15,  1866. 

The  obligation  to  furnish  maintenance  does  not  extinguish  by  the  mere  renuncia- 
tion of  the  person  who  is  to  receive  the  same.  Therefore,  a  deed  executed  by  a  mar- 
ried woman  separated  from  her  husband  binding  herself  not  to  demand  maintenance 
is  of  no  effect. — Decision  of  May  7,  1870. 

Upon  the  death  of  the  husband,  his  obligation  to  furnish  maintenance  to  his  wife  is 
extinguished. — Decision  of  July  9,  1874. 

In  accordance  with  this  article  (article  1210  of  the  repealed  law) ,  in  order  to  decree 
provisional  maintenance  to  the  person  who  is  entitled  thereto,  it  is  necessary,  among 
other  circumstances,  that  the  right  by  virtue  of  which  it  is  requested  be  properly 
proven.  Therefore,  when  the  person  requesting  the  same  by  reason  of  being  a 
natural  son  does  not  prove  that  he  is  such,  although  he  presents  witnesses  to  cor- 
roborate his  statements,  it  is  only  projen  that  the  defendant  for  sometime  after 
the  birth  of  the  minor  visited  his  mother  at  night  time,  and  which  is  not  considered 
sufficient  to  prove,  in  the  full  manner  required  by  law,  paternity  not  acknowledged 
either  expressly  or  impliedly,  by  acts  which  do  not  leave  room  for  doubt. — Decision 
of  November  28,  1881. 

One  of  the  essential  facts  which  must  appear  in  order  that  provisional  maintenance 
may  be  granted,  is  the  necessity  of  the  person  requesting  it,  or  what  is  the  same  thing, 
that  he  can  not  secure  enough  to  support  himself. — Decision  of  April  16,  1883. 

The  provisions  of  article  77  of  the  law  relating  to  civil  marriage  are  subordinated  to 


-r 

for  m 


328  LAW    OF    CIVIL    PROCEDURE. 

ART.  1608.  The  judge  shall  not  admit  the  complaint  if  the  copies 
mentioned  in  the  foregoing  article  are  not  attached. 

ART.  1609.  After  the  complaint  has  been  presented  in  due  form, 
the  judge  shall  order  the  par-ties  to  he,  called  to  appear  in  an  oral 
action,  which  shall  be  held  in  accordance  with  the  provisions  pre- 
scribed for  summary  proceedings  to  retain  or  recover  possession  of 
property,  in  which  such  evidence  as  the  parties  may  otl'er  with  regard 
to  the,  matters  referred  to  in  article  1607,  and  not  pi-oven  by  the.  docu- 
ments attached  to  the  Complaint,  shall  be,  admitted. 

ART.  1610.  This  hearing  shall  take,  place,  within  live  days  after  the 
presentation  of  the  complaint,  if  both  parties  should  be  at  the  place 
where  the  action  is  pending,  and  this  period  shall  be.  extended  <. in- 
day  for  every  30  kilometers  which  the  defendant  may  be,  distant,  to  be, 
counted  from  the  day  on  which  the  citation  is  made.  The  period  of 
time  mentioned  can  not,  exceed  ten  days,  for  whieh  purpose  the 
defendant  shall  be  admonished  that  if  lie  doe>  not  .appear  wit  hin  tin- 
period  fixed,  the  actions  shall  be  continued  without  any  furl  her  citation 
and  without  giving  him  a  hearing. 

A  copy  of  the  complaint  and  of  the  documents  shall  be.  delivered  to 
the  defendant  at  the,  time  the  citation  for  the  hearing  is  served  upon 
dim. 

ART.  1611.   The.  defendant  may,  at  the  hearing  and  in  no  other  man 
ner,  oppose,  the.  right  to  maintenance  pleaded  by  the  plaintiff,  or  deny 
the  obligation  either  to  f urn isli  the  same  or  the  amount    requested   by 
the  former. 

The  proper  record  shall  be,  made,  of  the  result  of  the  hearing,  and 
the  documents  which  the  parties  may  have  presented  shall  be  attached 
to  the  record. 

ART.  161^.  Within  three  days  after  the  conclusion  of  the  hearing 
the  judge  shall  render  judgment. 

If  the  judgment,  should  order  the  payment  of  an  allowance  for  main 
tenance.  the  amount  thereof  shall  be,  temporarily  determined  until  the, 
amount  is  finally  fixed  in  the  proper  declaratory  action,  if  any  of  the 
parties  should  institute  it,  and    it  shall  be,  stipulated    thai    (he  payment 
in  to  be  made,  monthly  in  advance. 

ART.  I61/J.  The  judgment,  in  which  t  he maintenance  is  denied  may 
be  appealed  from  both  for  a  review  and  for  a  slay  of  procccdm-  : 
judgments  granting  it  may  be  appealed  from  for  review  only. 

In  the  latter  case,  the  original  records  shall  be  foruarded  h.  the 
appellate  court,  and  tin-re  hall  remain  i"  the  l"\v«-i  court  a  certified 
copy  of  the  judgment  for  its  execution,  in  accordance  wilh  th 
visions  of  article 


tin-   provisions  "f  sirtir.li-  7-r>,  which,  in  its  foiirih  (-a  •      |>"    •  ri)><      ilmi 
to  furnish    m;iint< •n;un-c  CCSIHCH   when   I  he   person   who  is,  to   receive  the  name   he 
brother  or  Histcr  of  the  person  to  furnish   it,  :m<l   the  m-i-iwify  of  the  former  ,"honl<l 
urine  from  viccn  or  h;ul  rono'iict.    -  Ih-nninu  of  M<nj  /'/',  /. 


, 


LAW    OF    CIVIL    PINHVKDURK.  329 


in.  l'»l  I.   It'  the  pel-son  adjudged  to  furnish  maintenance  should 

not  pay  the  allowance  on  the  day  on  which  it  is  due,  according  lo  (he 
judgment,  il  shall  be  en  forced  according  to  (lie  provision's  prescribed 
for  judicial  compulsion  al'lcr  execulorv  actions. 

'The  same   shall  In-  done  with    regard  to  (he  monthly   installments  as 
they    fall  due. 

AIM.  hil;").  Whatever  l>e  the  final  judgment  Which  mav  be  rendered 
these  actions,  it  shall  not  ^ive  rise  to  the  exception  of  AM  }n<ti<'(it<t. 
The  parties  shall  always  reserve  the  ri^ht  to  institute  the  plenary 
action  for  definite  maintenance,  ar^nin^  in  the  same,  according  to  the 
procedure  of  the  proper  declaratory  action,  the  v  \\r\\\  thereto,  as  well 
as  the  obligation  to  furnish  the  same  and  the  amount  of  the  allowance 
therefor,  without  prejudice  to  the  payment  of  the  sum  pro\  isionallv 
fixed.1 

TITLK   XIX. 

REDEMPTIONS 


AIM.    IC.hi.     In  order  thai    an   action    for  redempt  ion    may  be  allowed 
it   is  necessary  : 

That,  ii  be  instituted  within  nine  days,  counted  From  (lie  date  of 

le   execution   of   I  lie   deed    of     -ale. 

Thai    the  price,  if  known,  be  deposited,  and   otherwise  thai  seeu- 
•ily    be   furnished    to  d<>    ,«,  a     BOOH  :i      (he  price  becomes  known. 

Thai    some   evidence   of   Ihe    lille    upon  which    the    redemption    is 
ased  be  a  1 1  ached  to  I  he  complaint ,  e\  en  if  not,  cm  (elusive. 

•I.    That  an  agreement    be  math',  if  Ihe  redemption  is  a  vested   faniiU 
i'dit   (gentUioio))  l<>    retain    the   e.Jale    redeemed    for   a    period    of    t  \\  o 
year    at   least,  unless  by  reason  of  some  mi -fortune  the  parly  retainine.- 
tlie     am.'   |H  compelled    |o  sell    it. 

5,    That  the  cole  nan  I    bind  himself  not  to  sell  his  interest   in  the  prop 
erl  \    he  redeems  for  four  \  ears. 

<i.    Thai   he  bind  himself,  if  the  redemption  is  requested  by  the  direct 
or  beneficial  owner  of  I  he  ej  ale,  not    I  o  separate  I  he  o\\  nership  and   the 
I    the  properly    for  six  years. 

1    \  MIII    I     III-I-NM  ill  '  \\ilh    i<-"ar.|   lo  |>r<>\  i;:ioii;il   in. mil.  -n. nice    nil    .i|.|-.-.il   loi    .iiiniil 
in.  ni  o|    |n.|  -I,,,  ni     |i:il|  no)   Ii.-,   I. iii  mi  ordinary  JM'tioll  may  lie  brought.       /Vrw'o//  (»/' 


\ll«i     i.ni.-cf.liii";     I..  i     I.  III|MII.II  \    iM.iiiil.-iiancr,    in    \\liirh    tin-    sjunr   was    denied, 
JiiiMllin    :i.ih,i,    niiix     I,,-    in   nhii..|    \\ilh  the   Hiiine   ohjerl    in  view.       Ih'riitum  nf  ./inn- 

/;.  / 

Tilt-   |.i..\  i.  Km  i   M  -l.il  iii"    l<>   n:il  in  .1  1     iii:iiiilcii;iiirc    iiilisl    I  ml    lie  ii|»|iliei|    |o  ei\  il    111:1111 
ti'ii;m,  ,   ,    \\ln,  Ii    |H    lo    I,,      hum    I,..  I     in    IKU'ordaUCr    \\ilh     lln-    oli|i!-;il  ion    .  onl  I:IC|,M|. 

/>.  n  i,  ,n  ../  .l,iiiii<n  i/  i  ..,  / 

.1  Ihlj/llli'lil;       H-|nU-|..|      \\ltli      |.'":il.|      I  .....   Mlllfllilll.  .•     lull:l      lie     I  •  \  I  •<  •(  1  1  <  >(  I     ilM     ,MOO||     ||S 
reii.lrii-,1  !>,.,<  .....  /      /  ',  tn-lHIi'll    I  I  . 

no!,  -..   lo  .ul  i,  I.-       I   ;  I    .HI,  |     |MI 


330  LAW    OF    CIVIL    PROCEDURE. 

7.  That  copies  be  attached,  drafted  on  ordinary  paper,  of  the  com- 
plaint and  of  the  documents  which  may  be  presented.1 

ART.  1617r  If  the  person  who  institutes  the  action  for  redemption 
does  not  reside  in  the  town  where  the  instrument  upon  which  the 
action  is  based  was  executed,  he  shall  be  allowed,  for  the  purpose  of 
instituting  the  action,  in  addition  to  the  nine  days,  one  da}7  for  every 
thirty  kilometers'  distance  from  his  residence  to  said  town. 

ART.  1618.  If  the  sale  has  been  maliciously  concealed,  the  period  of 
nine  days  shall  not  begin  until  the  day  following  that  upon  which  it  is 
shown  that  the  plaintiff  had  knowledge  thereof. 

For  said  purpose,  the  concealment  of  the  sale  shall  be  considered 
malicious  if  it  should  not  have  been  recorded  in  the  registry  of  prop- 
erty at  the  proper  time.  In  such  case,  the  period  shall  begin  from 
the  date  of  the  presentation  of  the  instrument  of  sale  in  the  registry. 

ART.  1619.  The  judge  shall  admit  the  complaint  and  shall  order  the 
institution  of  proceedings  for  redemption,  and  the  deposit  in  the  public 
establishment  provided  for  the  purpose  of  the  amount  paid,  or  shall 
accept  security  therefor,  under  his  liability,  in  a  proper  case,  without 
prejudice  to  his  right  to  alter  or  amend  his  orders  during  the  pend- 
ency of  the  proceedings,  after  the  presentation  of  the  certificate  of  the 
proceedings  to  avoid  litigation.2 

ART.  1620.  After  the  presentation  of  the  certificate  of  the  proceed- 
ings to  avoid  the  suit  (acto  de  conciliacion),  by  the  plaintiff,  the  judge 
shall  refer  the  complaint  to  the  purchaser  and  shall  order  him  to  be 
summoned,  delivering  to  said  purchaser  the  copies  of  the  complaint 
and  of  the  documents  in  the  manner  prescribed  for  ordinary  actions 
of  greater  import. 

ART.  1621.  If  the  defendant  should  appear  within  the  period  fixed 
in  the  summons,  he  shall  be  ordered  to  make  answer  to  the  complaint 
within  the  period  of  nine  days. 

Should  he  not  enter  an  appearance,  the  provisions  of  articles  520 
and  521  shall  be  observed. 

ART.  1622.  The  defendant  shall  state  in  his  answer  whether  he 
agrees  to  the  facts  upon  which  the  complaint  may  have  been  based  or 
shall  state  the  allegations  which  he  denies. 

lrrhe  jurisprudence  relating  to  redemption  by  reason  of  a  vested  family  right 
(gentilicio)  has  been  omitted,  because  this  institution  has  been  abolished  by  the  civil 
code  in  force. 

It  is  to  be  understood  that  when  estates  sold  at  public  auction  are  involved  the 
nine  days  are  to  be  counted  from  the  day  on  which  the  sale  is  judicially  approved, 
because  the  right  of  the  redeemer  to  bring  his  action  begins  from  that  moment,  with- 
out his  being  obliged  to  await  the  execution  of  the  deed  of  sale. — Decision  of  July 
11,  1885. 

2  In  actions  for  redemption  the  complaint  may  be  presented  without  prior  proceed- 
ings for  a  compromise  being  held,  it  being  sufficient  that  said  conciliation  be  attempted 
when  the  hearing  is  held. — Decision  of  January  11,  1860. 


LAW    OF    CIVIL    PROCEDURE.  331 

A  ropy  of  the  answer  to  the  complaint  shall  be  attached  thereto, 
which  shall  be  delivered  to  the  plaintiff. 

ART.  1623.  If  the  parties  should  agree  upon  the  facts,  the  judge 
shall  order  the  record  to  be  brought  before  him,  without  further  pro- 
ceedings, citing  the  parties  for  judgment. 

The  provisions  contained  in  article  755' shall  be  applicable  to  this 
lase. 

ART.  1624.  Should  the  parties  not  agree  as  to  the  facts,  evidence 
shall  be  taken  in  the  case  with  regard  to  the  facts  upon  which  there 
is  a  disagreement,  and  the  proceedings  shall  be  continued  until  judg- 
ment is  rendered,  according1  to  the  procedure  established  for  inci- 
dental issues,  the  provisions  of  articles  752  to  757,  inclusive,  being 
observed.1 

ART.  1625.  The  judgment  rendered  may  be  appealed  from  for  a 
review  and  for  a  stay  of  proceedings,  and  the  second  instance  shall  also 
be  heard  and  determined  according  to  the  procedure  prescribed  for 
appeals  from  incidental  issues. 

ART.  1626.  As  soon  as  the  judgment  allowing  the  redemption 
becomes  Hnal,  a  record  shall  be  made  in  the  registry  of  property  of 
the  agreement  entered  into  in  any  of  the  cases  mentioned  in  subdivi- 
sions 4,  5,  and  6  of  article  1616,  a  mandate  in  duplicate  to  the  register 

iing  issued  for  the  purpose,  which  official  shall  return  one  of  the 
>pies,  with  a  memorandum  to  the  effect  that  it  has  been  complied  with, 
•hich  shall  be  attached  to  the  record. 

ART.  1627.  The  purchaser  defeated  in  the  action  may  at  any  time 
•lease  the  plaintiff  from  the  charge  mentioned  in  subdivisions  4,  5, 
nd  6  of  article  1616. 

ART.  1628.  If  the  defeated  purchaser  should  agree  thereto,  or  upon 
the  expiration  of  the  period  mentioned  in  article  1616,  the  judge  shall 
issue  another  mandate  for  the  cancellation  of  the  entry  of  the  agree- 
ment of  the  plaintiff  made  in  the  registry  of  property. 

Any  alienation  made  before  the  expiration  of  the  respective  period 
shall  be  null  and  void,  and  the  redemption  shall  also  be  so,  if  said  pur- 
chaser should  request  it. 

TITLE  XX. 

SUMMARY  PROCEEDINGS  RELATING  TO  PROPERTY. 

ART.  1629.  Summary  proceedings  relating  to  property  can  only  be 
instituted: 

1.  To  acquire  possession. 

2.  To  retain  or  recover  possession. 

1  The  taking  of  evidence  is  proper  even  when  there  is  an  agreement  upon  the 
facts,  if  it  should  tend  to  prove  malicious  concealment. — Decision  of  November  10, 
1886. 


332  LAW    OF    CIVIL    PROCEDURE. 

3.  To  prevent  a  new  construction. 

4.  To  prevent  that  damage  be  caused  by  a  ruinous  construction.1 
ART.   1630.    The  cognizance  of  summary  proceedings  relating  to 

property  pertains  exclusive  to  the  ordinary  jurisdiction. 

SECTION  I. — Summary  proceedings  to  acquire  possession*    , 

ART.  1631.  In  order  that  summary  proceedings  to  acquire  posses- 
sion may  be  instituted,  it  shall  be  an  indispensable  requisite  that  no 
person  be  in  the  possession  as  owner  or  usufructuary  of  the  property 
whose  possession  is  requested.3 

ART.   1632.    A  true  copy  of    the  testamentary  disposition  of  the 
deceased  whose  property  is  involved  in  the  summary  proceedings  shall 
be  presented  with  the  petition,  or,  if  the  deceased  should  have  died 
intestate,  the  declaration  of  heirship  made  by  the  competent  judicial . 
authority. 

ART.  1633.  When  the  possession  is  to  be  based  upon  a  title  different 
from  those  mentioned  in  the  foregoing  article,  the  proceedings  shall 
conform  to  the  procedure  established  in  title  14  of  the  first  part  of  Book 
3  of  this  law. 

ART.  1634.  The  plaintiff  shall  request  in  the  petition  that  the  sum- 
mary evidence  of  witnesses  be  taken  for  the  purpose  of  establish- 
ing the  fact  that  the  property  whose  possession  he  claims  is  not  in  the 
possession  of  any  other  person  either  as  owner  or  usufructuary. 

ART.  1635.  After  the  evidence  referred  to  in  the  foregoing  article 
has  been  taken,  the  judge  shall  render  a  decision  granting  the  possession 
requested,  without  prejudice  to  the  better  right  of  a  third  person, 
or  refusing  to  grant  the  same. 

1  Orders  issued  in  summary  proceedings  relating  to  property  are  not  final,  nor 
do  they  produce  the  exception  of  resjudicata. — Decision  of  June  14,  1864. 

The  provisions  contained  in  this  title  are  not  applicable  to  ordinary  actions. — 
Decision  of  June  6,  1865. 

2  See  article  446  of  the  Civil  Code. 

8In  accordance  with  article  694  of  the  former  law,  in  order  that  summary  pro- 
ceedings to  acquire  possession  could  be  instituted,  it  was  necessary  to  present  a  suffi- 
cient title  to  acquire  the  possession,  and  that  no  person  was  in  possession  of  the 
property  involved  as  an  owner  or  usufructuary.  At  the  present  time  these  proceed- 
ings can  be  instituted  only  by  virtue  of  testamentary  or  intestate  heirship  of  the 
property  the  possession  of  which  is  requested.  And  if  it  should  be  desired  to  acquire 
the  possession  by  virtue  of  another  title  it  will  be  necessary  to  prove  the  same  and 
the  entry  thereof  in  the  registry  of  property  in  accordance  with  article  2056.  The 
supreme  court  had  already  established  that  a  decision  rendered  in  summary  pro- 
ceedings granting  the  possession  of  a  thing,  in  accordance  with  articles  694  to  700  of 
the  law  of  civil  procedure  of  1855,  can  be  opposed  only  by  the  person  prejudiced 
thereby,  according  to  the  means  established  by  articles  702  et  seq.  (1642  et  seq.  of  the 
new  law),  without  it  being  permissible  in  any  case  to  institute  against  this  possession 
summary  proceedings  to  recover  possession,  not  even  by  the  person  having  a  legiti- 
mate title  and  true  possession. — Decision  of  February  5,  1870. 


LAW    OF    CIVIL    PROCEDURE.  333 

The  decision  refusing  to  grant  possession  may  be  appealed  from  for 
review  and  for  a  stay  of  proceedings. 

ART.  1636.  After  the  decision  granting  the  possession  has  been  ren- 
dered, possession  shall  be  given  to  any  of  the  property  in  question,  in 
the  name  of  all  the  other  property,  by  a  bailiff,  who  shall  be  granted  a 
commission  for  the  purpose,  and  before  the  court  clerk. 

The  said  court  clerk  shall  issue  the  necessary  notices  to  the  lessees, 
tenants,  depositaries,  or  administrators  of  the  other  property,  in  order 
that  they  may  acknowledge  the  new  possessor,  who,  at  once  or  later, 
may  designate  the  persons  upon  whom  said  notices  are  to  be  served. 

ART.  1637.  The  person  who  shall  have  obtained  possession  shall  be 
given,  if  he  requests  it,  a  transcript  of  the  decision  granting  the  pos- 
session and  of  the  proceedings  had  for  the  fulfillment  of  said  decision. 

ART.  1638.  After  the  possession  has  been  given,  the  judge  shall  order 
that  the  decision  granting  the  same  be  published  by  edicts,  which  shall 
be  posted  at  the  customary  places  of  the  town  where  the  court  is  situ- 
ated, and  they  shall  be  inserted  in  the  official  bulletins  of  the  province, 
where  there  are  such,  or,  in  their  absence,  in  the  Gaceta  of  the  Gen- 
eral Government.1 

ART.  1639.  After  the  expiration  of  forty  days  from  the  date  of  the 
publication  of  the  decision  in  accordance  with  the  provisions  of  the  fore- 
going article,  if  no  person  should  appear  and  claim  the  property,  the 
person  who  has  acquired  possession  shall  be  confirmed  therein,  and  no 
claim  against  possession  shall  be  allowed  thereafter.  An  action  in  rem 
shall  be  the  only  remedy  left  to  the  person  who  believes  himself  injured, 
and  during  the  course  of  this  action  the  person  who  has  acquired  pos- 
session must  be  maintained  therein.2 

ART.  1640.  Objections  made  to  the  possession  during  the  aforemen- 
tioned period  shall  be  attached  to  the  record,  and  upon  the  expiration 
of  forty  days  it  shall  be  delivered  to  the  person  who  has  obtained 
possession,  in  order  that  he  may  make  answer  thereto  or  state  what  he 
may  deem  proper  within  six  days,  upon  the  expiration  of  which  the 
record  shall  be  recovered  without  the  necessity  of  judicial  compulsion. 

ART.  1641.  After  the  document  referred  to  in  the  foregoing  article 
has  been  presented,  to  which  there  shall  be  attached  as  many  copies  as 
there  may  be  claimants,  or  after  the  record  has  been  recovered,  the 
judge  shall  issue  an  order  ordering  that  said  copies  be  delivered  to  the 
persons  mentioned  and  that  the  parties  be  cited  to  appear  at  an  oral 
action,  for  the  holding  of  which  the  nearest  day  possible  shall  be  fixed. 

1  The  decision  referred  to  need  not  be  made  public  in  any  other  manner  than  that 
specified. — Decision  of  March  4,  1887. 

2  In  no  manner  whatsoever  is  the  benefit  of  restitution  in  inlegrum  proper  in  this 
case,  for  the  purpose  of  annulling  the  decision  granting  the  possession,  because  the 
prejudice,  ii'  there  has  been  any,  may  be  corrected  by  an  ordinary  action. — Decisions 
of  January  14,  1864,  and  others. 


334  LAW    OF    CIVIL    PROCEDURE. 

ART.  1642.  The  counsel  for  the  parties  may  appear  at  the  oral  action. 

After  the  petitioners,  in  their  order,  have  presented  their  claim  to 
the  property,  and  after  the  person  who  has  obtained  possession  has 
answered  them,  both  parties  shall  submit  the  evidence  which  they  may 
deem  proper,  and  which  may  be  depositions,  documents,  or  of  wit- 
nesses. After  the  judge  has  admitted  such  evidence  as  he  considers 
pertinent  it  shall  be  heard  at  once  and  the  documents  shall  be  attached 
to  the  record. 

A  record  of  the  result  of  the  proceedings  shall  be  drafted,  which 
shall  be  signed  by  the  judge,  the  persons  interested,  the  witnesses  who 
may  have  been  examined,  and  the  court  clerk. 

ART.  1643.  If  any  of  the  evidence  submitted  and  allowed  should 
have  to  be  taken  beyond  the  place  where  the  proceedings  are  being 
held,  the  judge  shall  issue  the  orders  which  may  be  proper  for  the 
purpose,  and  may  continue  the  action  to  the  nearest  possible  date. 

ART.  1644.  Upon  the  conclusion  of  the  oral  action,  and  within  the 
three  days  following,  the  judge  shall  render  judgment  in  which  he 
shall  confirm  the  possession  of  the  party  who  has  obtained  it,  or  grant 
it  to  the  claimant  having  a  better  right  thereto,  together  with  all  its 
consequences,  and  annul  that  formerly  granted. 

In  the  latter  case,  if  it  should  appear  that  the  person  who  instituted 
the  summary  proceedings  should  have  acted  with  fraud,  he  shall  be 
adjudged  to  pay  the  costs  and  to  indemnify  any  losses  or  damages 
which  may  have  been  incurred. 

Said  judgment  may  be  appealed  from  for  review  as  well  as  for  a 
stay  of  proceedings. l 

ART.  1645.  As  soon  as  the  judgment  acquires  a  final  character,  the 
execution  of  its  provisions  shall  be  proceeded  with. 

When  by  virtue  thereof  possession  is  to  be  given  to  the  claimant  it 
shall  be  carried  out  in  the  manner  prescribed  in  article  1636. 

ART.  1646.  If  there  should  be  an  adjudgment  upon  costs,  the  costs 
shall  at  once  be  taxed  and  approved. 

ART.  1647.  If  there  should  be  an  adjudgment  of  profits  or  losses 
and  damages,  the  amount  thereof  shall  be  fixed  in  an  oral  action,  in 
which  the  judge,  taking  into  consideration  the  allegations  of  the  parties 
and  the  evidence  they  submit,  shall  determine  the  amount  to  be  paid. 

There  shall  be  no  remedy  whatsoever  against  this  declaration,  the 

lrThe  indemnification  of  losses  and  damages  is  governed  by  this  article  and  the  cita- 
tion for  the  purpose  thereof  and  of  annulment  of  judgment,  of  Law  39,  Title  28,  Par- 
tida  3,  is  not  proper. — Decision  of  October?,  1882. 

If  a  person  has  been  deprived  of  the  possession  of  his  property  by  reason  of  the 
summary  proceedings  instituted  by  the  administrator  of  another  estate  without  the 
consent  of  the  latter,  this  lack  of  consent  does  not  prevent  that  when  restitution  to 
the  first  person  is  decreed  in  a  declaratory  action,  the  payment  of  losses  and  damage's 
with  all  its  consequences  be  ordered. — Decision  of  July  8,  1885. 


\ 
\ 


LAW    OF    CIVIL   PROCEDURE.  335 

parties  reserving  their    rights   to  present  in  an  ordinary  action  the 
claims  which  they  may  deem  proper. 

ART.  1648.  After  the  amount  of  the  costs,  profits,  or  losses  and 
damages  is  known,  they  shall  be  recovered  in  the  manner  prescribed 
in  the  proceedings  for  judicial  compulsion  after  an  executory  action. 

SECTION  II. — Summary  proceedings  to  retain  or  recover  possession.1 

ART.  1649.  Summary  proceedings  to  retain  or  recover  possession 
shall  lie  when  the  person  who  is  in  possession  or  in  the  tenancy  of  a 
thing  has  been  disturbed  therein  by  acts  that  show  the  intention  of 
molesting  or  dispossessing  said  party,  or  when  said  party  has  already 
been  disseized  of  his  possession  or  tenancy.2 

ART.  1650.  In  the  complaint,  to  which  shall  be  attached  a  copy 
drafted  on  ordinary  paper,  evidence  shall  be  offered  to  prove: 

1.  That  the  claimant  or  his  representative  is  in  the  possession  or 
tenancy  of  the  property. 

2.  That  he  has  been  molested  or  disturbed  in  said  possession  or  ten- 
ancy, or  that  he  has  good  reasons  to  believe  that  he  will  be  so  molested 
or  disturbed,  or  that  he  has  been  deprived  of  said  possession  or  tenancy.' 
There  shall  be  clearly  and  precisely  stated  the  overt  acts  of  said  dis- 
turbance, or  of  the  attempt  to  commit  said  disturbance,  or  of  the 

ispossession,  and  the  plaintiff  shall  state,  furthermore,  whether  the 
acts  were  committed  by  the  defendant,  or  by  some  other  person  at  the 
instance  of  said  defendant. 

ART.  1651.  The  judge  shall  admit  the  complaint  and  order  that  evi- 

ence  be  taken,  if  it  shall  appear  that  said  complaint  was  presented 

articles  446  and  1968,  subdivision  1,  of  the  Civil  Code. 

2  The  judge  of  competent  jurisdiction  in  summary  proceedings  to  retain  possession 
is  the  judge  of  the  place  where  the  property  involved  is  situated. — Decision  of  Janu- 
ary 5,  1872.  » 

For  the  purposes  of  these  summary  proceedings  quasi  possession  is  included  in  the 
word  possession. — Decision  of  December  31,  1879. 

Ayuntamientos  may  confirm  the  possession  of  public  easements  belonging  to  the 
municipalities,  provided  that  one  year  and  a  day  have  not  elapsed  since  the  disturb- 
ance of  possession. — Decision  of  February  8,  1873. 

This  law  has  abolished  the  difference  of  procedure  between  summary  proceedings 
to  recover  and  to  retain  possession,  to  which  the  former  law  devoted  two  distinct 
sections;  and  it  orders,  furthermore,  that  the  person  causing  the  dispossession  be  cited 
and  heard  before  a  decision  is  rendered.  This  prescription  is  very  just,  and  renders 
null  the  power  granted  to  the  plaintiff  to  demand  and  obtain  a  decision  in  the  sum- 
mary proceedings  to  recover  possession  without  hearing  the  defendant,  in  which  case 
it  could  not  be  said  that  Law  2,  Title  XXXIV,  Book  11,  of  the  Novisima  Recopilacion 
had  been  violated. — Decision  of  March  3,  1880. 

Lessees  defend  themselves  in  their  own  right  when  they  institute  summary 'pro- 
ceedings against  the  persons  who,  instead  of  making  use  of  legal  measures,  violently 
dispossess  them  from  the  tenancy  of  leased  esjtates;  and,  therefore,  the  personal 
capacity  necessary  to  institute  said  proceedings  can  not  be  denied  them. — Decision  of 
June  25,  1880, 


336  LAW    OF    CIVIL    PROCEDURE. 

before  the  expiration  of  one  year  from  the  date  of  the  commission  of 
the  acts  which  are  the  cause  of  said  complaint. 

If  the  complaint  should  be  presented  after  said  period,  the  judge 
shall  declare  that  said  complaint  can  not  be  admitted,  but  shall  reserve 
to  the  plaintiff  the  right  to  exercise  his  cause  of  action  in  the  action 
which  may  be  proper. 

This  ruling  may  be  appealed  from  both  for  review  and  for  a  stay  of 
proceedings,  and  after  the  appeal  has  been  allowed  the  record  of  pro- 
ceedings shall  be  transmitted  to  the  superior  court  with  a  summons 
only  of  the  person  who  may  have  instituted  the  summary  proceedings. 

ART.  1652.  If  the  testimony  should  establish  the  two  issues  referred 
to  in  article  1650,  the  judge  shall  order  the  parties  to  be  cited  to  appear 
in  an  oral  action,  for  the  hearing  of  which  he  shall  set  a  day  and  hour 
within  the  eight  days  following;  but  three  days,  at  least,  must  inter- 
vene between  the  hearing  and  the  citation  of  the  defendant,  to  whom 
a  copy  of  the  complaint  shall  be  delivered  at  the  time  the  citation  is 
served  upon  him. 

ART.  1653.  The  defendant  shall  not  be  allowed  to  file  any  petition 
the  purpose  of  which  is  to  impugn  the  complaint  or  any  claim  which 
may  delay  the  hearing  of  the  action. 

ART.  1654.  For  the  hearing  of  the  oral  action  the  provisions  of 
articles  1642  et  seq.  shall  be  observed,  and  it  shall  be  held,  even  if  the 
defendant  should  fail  to  appear. 

Only  such  evidence  shall  be  admitted  which  relates  to  the  two  issues 
mentioned  in  article  1650,  and  the  judge  shall  reject,  subject  to  his  per- 
sonal liability,  any  evidence  immaterial  to  said  issues. 

ART.  1655.  Upon  the  day  following  the  termination  of  the  action 
the  judge  shall  render  judgment  as  to  whether  or  not  the  summary 
proceedings  are  proper.  Should  the  decision  be  in  the  negative,  .the 
plaintiff  shall  be  adjudged  to  pay  the  costs. 

The  decision  may  be  appealed  from  for  review  and  for  a  stay  of 
proceedings.1 

ART.  1656.  In  the  judgment  which  declares  that  summary  proceed- 
ings lie  on  account  of  the  plaintiff  having  been  disturbed  or  molested 
in  his  possession  or  tenancy,  or  because  he  has  good  reason  for  believ- 
ing that  he  will  be  so  disturbed  or  molested,  it  shall  be  ordered  that 
he  be  maintained  in  possession,  and  the  disturber  shall  be  required  to 
abstain  from  .committing  similar  acts,  or  others  manifesting  the  same 
intention,  with  the  warning  which  maybe  proper  according  to  law, 
all  the  costs  being  imposed  upon  the  defendant. 

1In  summary  proceedings  relating  to  possession  a  citation  for  judgment  is  not  neces- 
sary, because  it  is  not  established  in  the  special  procedure  prescribed  in  the  law,  and 
the  omission  of  such  action  is  not,  therefore,  a  cause  for  annulment. — Decision  <>f 
May  24,  1880. 


LAW    OF    CIVIL    PROCEDURE.  337 

In  the  judgment  which  declares  that  summary  proceedings  are 
proper  because  the  plaintiff  has  been  dispossessed  of  his  possession  or 
tenancy,  it  shall  be  ordered  that  he  be  immediately  revested  in  said 
possession  or  tenancy,  and  the  person  causing  the  dispossession  shall 
be  adjudged  to  pay  all  the  costs,  losses,  and  damages,  and  to  return  the 
profits  he  may  have  received. 

In  either  case  the  judgment  shall  contain  the  clause  "  without  preju- 
dice to  a  third  person,"  and  the  parties  shall  have  all  rights  reserved 
to  them  which  they  may  have  with  regard  to  the  ownership  or  definite 
possession  of  the  property,  and  which  they  may  enforce  in  the  proper 
action. 

ART.  1657.  From  the  judgment  declaring  that  summary  proceedings 
are  proper  an  appeal  lies  both  for  a  stay  and  review  of  the  proceedings, 
after  the  steps  ordered  to  maintain  or  revest  the  plaintiff  in  his  posses- 
sion have  been  complied  with ;  but  the  execution  of  all  other  matters 
relating  to  costs  and  the  return  of  profits,  losses,  and  damages  shall  be 
held  in  abeyance  until  said  judgment  acquires  a  final  character. 

ART.  1658.  If  the  judgment  declaring  that  summary  proceedings 
are  proper  should  be  affirmed  by  the  superior  court  after  the  record 
has  been  returned  to  the  lower  court,  the  judgment  shall  be  executed 

once  in  regard  to  all  matters  which  have  been  held  in  abeyance. 

If  the  judgment  admitting  or  denying  the  summary  proceedings 
should  be  reversed,  that  of  the  superior  court  shall  be  enforced  in 
accordance  with  its  terms. 

ART.  1659.  The  costs  shall  be  taxed  in  the  ordinary  manner. 

The  amount  of  the  losses  and  damages  and  of  the  profits  shall  be 
fixed  by  the  judge  without  further  remedy,  according  to  the  procedure 
prescribed  in  article  1617. 

In  order  to  collect  the  same,  after  the  amount  thereof  has  been  fixed, 

e  compulsory  process  established  for  executory  actions  shall  be 
resorted  to. 

ART.  1660.  The  documents  which  may  have  been  presented  shall 
be  returned  to  the  parties  requesting  it  upon  their  receipting  therefor, 
and  a  memorandum  shall  be  included  in  the  record  of  their  date,  the 
makers  thereof  and  their  purpose,  and,  if  the  documents  be  public,  of 
the  archives  in  which  the  originals  are  filed. 

SECTION  III. — Summary  proceedings  based  upon  a  new  construction. 

ART.  1661.  After  the  complaint  in  summary  proceedings  based  upon 
a  new  construction  has  been  filed,  the  judge  shall  issue  an  order 
restraining  tho  owner  of  the  construction  from  continuing  the  same, 
under  an  admonit  on  to  destroy  what  is  being  built,  and  citing  the 
parties  interested  to  appear  at  an  oral  hearing  upon  the  nearest  day 
possible  after  the  three  days  following  the  notification  of  said  injunc- 
2901 22 


" 


338  LAW    OF    CIVIL    PROCEDURE. 

tion,  and  to  present  thereat  the  documents  upon  which  they  base  their 
contentions. 

A  copy  of  the  complaint  must  be  attached  to  the  same,  drafted  on 
ordinary  paper,  which  shall  be  delivered  to  the  defendant  when  the 
citation  is  served  upon  him.1 

ART.  1662.  The  injunction  shall  at  once  be  served  upon  the  owner  of 
the  construction,  if  he  be  found  at  the  same,  and  otherwise  upon  the 
manager  or  person  in  charge  thereof,  and,  in  the  absence  of  the  latter, 
upon  the  workmen,  in  order  that  the  labors  ma}7  be  suspended  at  once. 

For  the  purpose  of  having  this  order  complied  with,  a  bailiff  shall 
remain  at  the  place  where  the  construction  is  being  erected  until  the 
workmen  have  left  the  same. 

ART.  1663.  The  owner  of  the  construction  may  request  that  he  be 
allowed  to  perform  such  work  as  may  be  absolutely  necessary  to  pre- 
serve whatever  may  have  been  erected.     The  judge  shall  grant  said 
permission  without  hearing  any  arguments  (de  plaiw)  summarily,  if  j 
he  deems  it  proper. 

There  shall  be  no  remedy  against  this  decision. 

ART.  1664.  The  oral  action  shall  be  conducted  in  the  manner  pre- 
scribed in  articles  1642  et  seq. ,  the  persons  interested  being  allowed 
to  present  the  documents  upon  which  they  base  their  respective 
contentions. 

ART.  1665.  The  judge  may  order,  in  furtherance  of  justice,  an  ocular 
inspection  of  the  construction,  for  which  purpose  he  shall  appoint  an 
expert,  if  he  considers  it  necessary. 

At  said  inspection,  which  must  take  place  within  the  three  days  fol- 
lowing the  conclusion  of  the  oral  action  (unless  an  insuperable  cause 
should  require  a  greater  delay),  the  parties  interested  may  be  present, 
accompanied  by  their  counsel  and  by  an  expert  of  their  own  choice, 
should  they  deem  it  advisable. 

The  expert  appointed  by  the  judge  can  not  be  challenged,  although 
the  parties  may  state  the  reasons  they  have  for  doubting  his  impar- 
tiality. 

The  proper  minutes  shall  be  made  of  the  action  as  well  as  of  the 
inspection,  with  the  results  thereof,  which  shall  be  signed  by  all  the 
parties  present. 

ART.  1666.  Within  the  three  days  following  the  conclusion  of  the 
oral  action,  or  the  inspection,  in  a  proper  case,  the  judge  shall  render 
his  decision. 

The  decision  raising  the  injunction  may  be  appealed  from  both  for 
review  and  for  a  stay  of  proceedings,  and  that  affirming  the  injunction 
may  be  appealed  from  for  review  only. 

1  The  judgment  rendered  in  summary  proceedings  based  upon  a  new  construction 
does  not  decide  the  question,  which  can  be  subsequently  discussed  in  an  ordinary 
action,  relating  to  the  right  to  continue  the  erection  of  the  construction  involved.— 

Decision  of  November  26,  1864. 


' 


LAW    OF    CIVIL    PROCEDURE.  339 

ART.  1667.  The  decision  ratifying  the  injunction  shall  be  enforced 
at  once,  without  waiting  for  the  expiration  of  the  period  within  which 
to  appeal. 

For  such  purpose  the  court  clerk  shall  proceed  to  the  place  where 
the  construction  is  being  erected,  and  shall  make  a  memorandum  of  the 
state,  height,  and  other  conditions  of  said  work,  admonishing  the 
defendant  that  any  subsequent  erection  will  be  demolished  at  his  cost. 

ART.  1668.  After  the  proceedings  mentioned  in  the  foregoing  article 
have  been  fulfilled,  if  the  judgment  should  be  appealed  from,  the 
record  of  the  proceedings  shall  be  forwarded  to  the  audiencia  with  the 
proper  service  of  summons  upon  the  parties. 

ART.  1669.  As  soon  as  the  judgment  ratifying  the  suspension 
becomes  final,  the  owner  of  the  construction  may  request  that  the 
right  to  continue  said  work  be  adjudged  to  him. 

This  petition  shall  be  heard  and  determined  according  to  the  pro- 
cedure prescribed  for  the  proper  declaratory  action,  and  shall  be 
referred  to  the  person  who  instituted  the  summary  proceedings,  with- 
out the  necessity  of  a  summons,  nor  of  proceedings  to  avoid  litigation 
(acto  de  conciliacion.) 

ART.  1670.  The  owner  may  also  request  that  he  be  authorized  to 
continue  the  construction,  on  account  of  the  serious  losses  which  he 
suffers  through  the  suspension  thereof,  giving  security  to  answer  for 
the  demolition  of  the  construction  and  for  the  indemnification  of  losses 
and  damages,  should  he  be  adjudged  to  pay  the  same. 

This  petition  shall  not  be  admitted,  unless  filed  at  or  after  the  time 
of  the  presentation  of  the  main  petition  referred  to  in  the  foregoing 
article. 

ART.  1671.  The  incidental  petition  requesting  authority  to  continue 
the  construction  shall  be  heard  and  determined  in  accordance  with  the 
procedure  prescribed  for  incidental  issues,  in  a  separate  record  or  in 
the  same  main  record,  at  the  election  of  the  petitioner. 

ART.  1672.  The  judge  shall  grant  the  authority  to  continue  the  con- 
struction if,  in  his  opinion,  serious  losses  would  be  suffered  by  the 
suspension  thereof. 

A  decision  denying  said  authority  may  be  appealed  from  both  for 
review  and  a  stay  of  proceedings. 

The  decision  granting  it  may  be  appealed  from  for  review  only,  and 
it  shall  be  executed  as  soon  as  the  owner  of  the  construction  furnishes 
the  security  mentioned  in  article  1670,  to  the  satisfaction  of  the  judge. 

ART.  1673.  The  person  who  has  instituted  the  summary  proceed- 
ings may,  in  the  proper  declaratory  action,  assert  such  rights  as  he 
may  consider  himself  entitled  to  for  the  purpose  of  securing  the 
demolition  of  the  construction,  if  the  decision  rendered  should  have 
been  adverse  to  his  claims,  or  to  demand  the  demolition  of  what  has 
been  previously  erected,  if  the  injunction  should  have  been  made  final. 


340  LAW   OF    CIVIL    PROCEDURE. 

SECTION  IV. — Summary  proceedings  against  ruinous  constructions. 

ART.  1674.  Summary  proceedings  against  ruinous  constructions  may 
have  two  objects: 

1.  The  adoption  of  urgent  measures  of  precaution  for  the  purpose 
of  avoiding  the  dangers  which  may  arise  from  the  bad  condition  of 
some  building,  tree,  column,  or  any  other  similar  object,  the  fall  of 
which  may  cause  injury  to  persons  or  property. 

2.  The  total  or  partial  demolition  of  a  ruinous  construction. 
ART.  1675.  Said  proceedings  may  be  instituted  only  by— 

1.  Persons  owning  contiguous  or  adjoining  property,  which  may  be 
damaged  or  injured  by  such  ruinous  construction. 

2.  Persons  who  are  under  the  necessity  of  passing  in  the  immediate 
vicinity  of  the  building,  tree,  or  construction,  liable  to  cause  injury. 

ART.  1676.  By  necessity  is  understood,  for  the  purposes  of  the  fore- 
going article,  that  which,  in  the  opinion  of  the  judge,  cannot  be  aban- 
doned without  depriving  the  complainant  of  the  exercise  of  a  right,  or 
injure  his  interests,  or  serious  inconvenience. 

ART.  1677.  If  the  object  of  the  summary  proceedings  should  be  the 
adoption  of  urgent  measures  for  securing  safety,  the  judge  shall  order 
an  examination  of  that  which  is  threatening  to  collapse,  which  he  shall 
immediately  make  in  person,  accompanied  by  the  court  clerk  and  by 
an  expert  whom  he  shall  appoint  for  the  purpose. 

The  proper  minutes  shall  be  made  of  the  judicial  inspection,  in  which 
shall  be  included  the  report  of  the  expert,  and,  without  delay,  the  judge 
shall  render  a  decision  ordering  that  the  measures  be  taken  which  he 
may  deem  necessary  to  temporarily  and  promptly  secure  the  proper 
safety. 

The  execution  of  these  measures  shall  be  compulsory  upon  the  owner 
of  the  ruinous  construction,  his  manager  or  agent,  and,  in  their  absence, 
upon  the  lessee  or  tenant,  who  shall  have  the  right  to  deduct  the 
amount  expended  from  the  rent  or  lease  price.  In  the  absence  of  all 
these  persons  the  plaintiff  shall  pay  the  costs,  and  he  shall  be  entitled 
to  reimbursement  of  said  costs  from  the  owner  of  the  construction, 
according  to  the  procedure  established  for  judicial  compulsion  in 
executory  actions. 

ART.  1678.  The  judge  may  deny  the  measures  of  precaution  prayed 
for,  if  the  urgency  thereof  should  not  be  apparent  from  the  inspection 
made  with  the  expert. 

ART.  1679.  No  appeal  shall  lie  from  the  decision  of  the  judge  grant- 
ing or  denying  the  urgent  measures  of  precaution. 

ART.  1680.  If  the  object  of  the  summar}^  proceedings  should  be  the 
demolition  of  some  ruinous  construction,  the  judge  shall  order  that  the 
parties  be  summoned  to  appear  in  an  oral  action,  with  the  urgency 
which  may  be  required  by  the  case,  which  may  be  attended  by  their 
respective  counsel.  He  shall  hear  their  allegations  and  witnesses,  and 


LAW    OP    CIVIL    PROCEDURE.  341 

shall  examine  the  documents  which  they  may  present,  attaching  them 
to  the  record  of  the  proceedings. 

The  proper  minutes  shall  be  made  of  this  action,  which  shall  be  sub- 
scribed by  all  those  who  have  attended  the  same. 

AKT.  1681.  If  the  judge  should  deem  it  necessary,  in  view  of  the 
result  of  the  action,  he  may  himself  make  an  inspection  of  the  work, 
accompanied  by  an  expert  whom  he  shall  appoint  for  the  purpose.  The 
parties  in  interest  may  attend  this  inspection,  if  they  so  desire,  accom- 
panied by  their  counsel  and  by  experts  of  their  choice. 

The  proper  minutes  shall  also  be  made  of  this  inspection,  which 
shall  be  subscribed  by  all  those  present. 

ART.  1682.  Within  three  days  after  the  termination  of  the  oral 
action,  or  of  the  inspection,  in  a  proper  case,  the  judge  shall  render 
judgment,  which  may  be  appealed  from  both  for  review  and  for  a  stay 
of  proceedings. 

ART.  1683.  If  the  demolition  should  be  ordered  and  the  urgency 
thereof  should  appear  from  the  action  and  inspection,  the  judge  must, 
before  transmitting  the  records  to  the  audiencia,  on  his  own  motion, 
order  and  enforce  the  execution  of  the  measures  of  precaution  which 
he  may  deem  necessary,  including  the  demolition  of  a  portion  of  the 
construction,  if  said  demolition  cannot  be  delayed  without  serious  and 
imminent  danger,  observing  for  this  purpose  the  provisions  contained 
in  the  last  paragraph  of  article  1677. 

TITLE  XXI. 

APPEALS   FOE  ANNULMENT  OF  JUDGMENT.1 

SECTION  I. — The  court  competent  to  take  cognizance  of  appeals  for 
annulment  of  judgment.2 

ART.  1684.  The  cognizance  of  appeals  for  annulment  of  judgment 
pertains  exclusively  to  the  supreme  court.3 

ART.  1685.  The  first  chamber  shall  take  cognizance  of  appeals  for 
annulment  of  judgment  by  reason  of  a  violation  of  law  or  legal  doc-1 

trine. 



1  See  civil  order  No.  92,  Headquarters  Division  of  Cuba,  in  Appendix. 

2  See  in  appendix  the  royal  decree  of  August  29,  1893,  as  well  as  the  Cuban  civil 
order  mentioned,  modifying  the  organization  of  the  supreme  court,  thus  amending  a 
large  number  of  the  provisions  of  this  title. 

3An  appeal  for  annulment  of  judgment  does  not  lie  from  the  more  or  less  pertinent 
bases  of  judgments  nor  from  the  reservation  of  rights  contained  in  the  same,  espe- 
cially if  the  reservation  is  favorable  to  the  appellant. — Decision  of  May  14,  1884- 

The  supreme  court  has  repeatedly  declared  that  a  question  not  argued  in  the  action 
nor  decided  by  the  judgment,  cannot  be  the  object  of  an  appeal  for  annulment  of 
judgment. — Decision  of  May  19,  1884, 

An  error  in  a  judgment  which  consists  in  a  simple  arithmetical  mistake  cannot  be 
the  basis  for  an  appeal  for  annulment  of  judgment. — Decision  of  January  26,  1889. 


342  LAW    OF    CIVIL    PROCEDURE. 

ART.  1686.  The  third  chamber  shall  take  cognizance  and  decide: 

1.  Upon  the  admission  of  appeals  for  annulment  of  judgment  by   | 
reason  of  a  violation  of  law  or  legal  doctrine. 

2.  Appeals  interposed  for  breach  of  form. 

3.  Appeals  for  annulment  of  judgment  taken  against  decisions  of 
amicable  compounders.1 

4.  The  remedies  of  complaint  mentioned  in  this  title. 

SECTION  II. — Cases  in  which  an  appeal  for  annulment  of  judgment  lies. 

ART.  1687.  An  appeal  for  annulment  of  judgment  shall  lie  in  the 
cases  established  in  this  law: 

1.  From  final  judgments  rendered  by  audiencias. 

2.  From  final  judgments  rendered  by  judges  of  the  first  instance  in 
actions  of  unlawful  detainer  of  which  they  take  cognizance  on  appeal. 

3.  From  judgments  of  amicable  compounders.2 

lAn  appeal  for  annulment  of  judgment  having  been  taken  from  an  award  of 
amicable  compounders  because  it  was  rendered  outside  of  the  period  fixed  in  the 
compromise,  the  supreme  court  finds  the  appeal  based  on  number  3  of  article  4  of 
the  law  of  cassation,  and  annuls  the  judgment  appealed  from. — Decision  of  May  13, 
1880. 

The  .period  fixed  in  a  compromise,  within  which  amicable  compounders  are  to 
render  judgment,  must  be  computed  from  moment  to  moment,  as  the  supreme  court 
has  repeatedly  declared,  and  holidays  can  not  be  deducted  unless  an  express  stipula- 
tion should  have  been  made  in  the  contract  to  this  effect. — Decision  of  March  17, 1S$£. 

The  supreme  court  annuls  a  judgment  of  arbitrators  because  it  was  not  rendered 
within  the  proper  period.  It  appears  that  the  persons  interested  fixed  eight  days 
for  the  rendering  thereof;  that  they  authorized  the  arbitrators,  who  numbered  three, 
to  unanimously  extend  the  period  for  eight  more;  that  two  of  the  amicable  com- 
pounders did  so,  and  that  they  rendered  judgment  within  the  extension.  The 
annulment  of  the  judgment  is  based  upon  articles  803  and  828  of  the  law,  because  the 
extension  of  the  period  exceeded  one  half  that  fixed  in  the  compromise,  and  also 
because  the  extension  was  not  unanimously  agreed  to. — Decision  of  June  4,  1888. 

2  Although  in  general  this  appeal  is  not  allowed  against  decisions  rendered  in  the 
execution  of  judgments,  it  lies,  nevertheless,  when  said  decisions  decide  new  ques- 
tions not  included  in  the  judgment. — Decision  of  May  4,  1871. 

,    This  appeal  does  not  lie  from  a  judgment  affirming  a  taxation  made  for  the  execu- 
tion of  an  executory  action. — Decision  of  May  22,  1871. 

A  decision  which  confines  itself  to  stating  what  judge  is  to  take  cognizance  of  an 
action  can  not  be  considered  final  for  the  purposes  of  the  law. — Decision  of  January  3, 
1881. 

This  appeal  does  not  lie  in  administrative  matters  which  are  governed  by  special 
laws. — Decision  of  April  19,  1882. 

An  appeal  for  annulment  of  judgment  does  not  lie  against  what  has  already  been 
executed. — Decision  of  June  30,  1886. 

A  ruling  which  only  orders  that  the  appellant  furnish  the  security  mentioned  in 
article  33  of  said  law  for  the  payment  of  the  costs  which  may  be  adjudged  against 
him  is  not  final. — Decision  of  December  22,  1887. 

This  appeal  does  not  lie  when  the  judgment  appealed  from  was  rendered  in  an 
incidental  issue  relating  to  the  raising  of  a  provisional  seizure,  the  purpose  of  which 
was  to  answer  for  the  result  of  the  main  action,  whose  course  is  not  interrupted 


LAW    OF    CIVIL    PROCEDURE.  343 

AKT.  1688.  For  the  purposes  of  the  foregoing  article,  in  addition 
to  decisions  terminating  an  action,  the  following  shall  also  be  considered 
as  final: 

1.  Those  which,   rendered   upon    an  incidental  issue  or  collateral 
matter,  terminate  the  action  and  render  its  continuation  impossible; 
and  those  which  decide  issues  with  regard  to  the  approval  of  accounts 
of  administrators  of  intestate  and  testate  successions,  and  of  trustees 
in  insolvency  proceedings  in  the  case  mentioned  in  article  1243. 

2.  Rulings  which  declare  whether  or  not  a  litigant  who  has  been 
declared  in  default  should  be  heard. 

3.  Judgments  terminating  actions  for  temporary  maintenance. 

4.  Those  rendered  in  acts  of  voluntary  jurisdiction,  in  the  cases 
established  by  law.1 

thereby  and  which  can  continue  until  judgment  is  rendered. — Decision  of  October  2, 
1888. 

A  judgment  which  does  not  decide  the  claim  which  is  the  object  of  the  litigation 
and  which  reserves  decision  until  certain  requisites  have  been  complied  with,  has 
not  a  final  character. — Decision  of  October  2,  1888. 

A  ruling  of  an  audiencia  wrhich  declares  that  a  solicitor  who  desires  to  appear  in 
an  action  on  behalf  of  one  of  the  litigants  can  not  be  considered  a  party  thereto,  has 
not  the  character  of  a  final  decision. — Decision  of  January  15,  1889. 

1  Rulings  of  courts  ordering  the  cancellation  or  inscription  of  cautionary  notices 
relating  to  real  property  in  litigation  can  not  be  considered  as  final  judgments  for 
the  purposes  of  appeals  for  annulment  of  judgment. — Decision  of  February  15, 1877. 

Rulings  of  superior  courts  in  questions  of  jurisdiction  are  not  definite  for  the  pur- 
poses  of  annulment  of  judgments. — Decision  of  February  24,  1877. 

Orders  issued  declaring  the  termination  of  proceedings  of  voluntary  jurisdiction 
have  not  a  definite  character. — Decision  of  June  23,  1877. 

An  appeal  for  annulment  of  judgment  is  not  admissible  against  orders  issued  for 
the  execution  of  a  judgment  as  they  are  not  substantially  adverse  to  the  provisions 
of  the  same,  or  do  not  contain  declarations  of  rights  different  from  those  contained 
in  the  judgment. — Decision  of  May  17,  1877. 

A  decision  which  grants  permission  to  prosecute  or  defend  as  a  poor  person  is  not 
considered  final  for  the  purposes  of  annulment  of  judgment. — Decision  of  November 
15,  1877. 

A  decision  upon  the  priority  of  an  attachment  has  not  a  final  character. — Decision 
of  January  19,  1884. 

An  appeal  for  annulment  of  judgment  is  an  extraordinary  remedy,  and  does  not  lie 
therefore  when  there  are  other  ordinary  remedies  which  can  be  utilized. — Decision 
of  February  25,  1884. 

A  decision  which  admits  the  personal  capacity  of  one  of  the  parties  is  not  of  a  final 
character,  because  far  from  rendering  the  action  impossible  it  facilitates  the  continua- 
tion thereof. — Decision  of  September  30,  1884. 

When  errors  in  form  are  committed  in  testamentary  proceedings,  and  the  persons 
interested  agree  to  and  approve  said  proceedings,  they  can  not  be  afterwards  alleged 
for  the  purposes  of  an  appeal  for  annulment  of  judgment  that  said  proceedings  were 
performed  in  violation  of  law. — Decision  of  March  20,  1885. 

An  appeal  for  annulment  of  judgment  does  not  lie  for  breach  of  law  from  a  ruling 
upon  dilatory  exceptions  relating  to  jurisdiction  and  a  Us  pendens,  because  it  is  not 
considered  final,  and  therefore  not  included  in  the  provisions  of  article  1688  of  this 
law. — Decision  of  March  31,  1885. 


344  LAW    OF    CIVIL    PROCEDURE. 

ART.  1689.  An  appeal  for  annulment  of  judgment  must  be  based  upon 
one  of  the  following  causes: 

1.  Violation  of  law  or  legal  doctrine  in  the  adjudging  part  of  the 
decision. 

2.  Breach  of  some  of  the  essential  forms  of  the  action. 

3.  The  rendition  of  a  judgment  by  amicable  compounders  outside  of 
the  period  fixed  in  the  compromise  or  upon  a  matter  not  submitted  to 
their  decision.1 

ART.  1690.   An  appeal  for  annulment  of  judgment  by  reason  of 
violation  of  law  or  of  legal  doctrine  shall  lie: 

1.  When  the  decision  contains  a  violation,  erroneous  interpretation, 
or  wrongful  application  of  law  or  of  legal  doctrine  applicable  to  the 
case  at  issue.2 

2.  When  the  judgment  is  not  pertinent  to  the  allegations  made  by  the 
litigants  at  the  proper  time.3 


1  Questions  which  have  not  been  properly  prepared  and  have  not  been  therefore 
decided  in  the  j  udgment  can  not  be  appealed  from  for  annulment  of  judgment.  — Decisions 
of  June  26,  1882,  and  March  21,  1883. 

Penal  laws  can  not  be  applied  in  civil  proceedings,  and  therefore  a  civil  appeal 
for  annulment  of  judgment  can  not  be  based  thereon. — Decisions  of  November  24, 1882, 
and  June  12,  1885. 

It  is  not  licit  for  an  appellant  to  act  against  the  acknowledgment  of  a  right  which 
has  been  exercised  by  his  agent. — Decision  of  May  23,  1883. 

This  appeal  is  not  admissible  when  a  law  or  legal  doctrine  is  not  cited  which  has 
been  violated  dejure  or  de  facto  based  on  an  authentic  document. — Decision  of  March 
27,  1885. 

2  An  appeal  for  annulment  of  judgment  can  not  be  based  upon  a  decision  of  the 
Supreme  Court. — Decision  of  July  7,  1882. 

The  citation  of  the  doctrine  of  the  decisions  of  the  Supreme  Court  is  not  proper 
when  the  doctrine  adequate  to  the  purpose  and  end  invoked  is  not  established. — 
Decision  of  July  3,  1883. 

Laws  which  have  not  determined  the  judgment  can  not  be  invoked  as  violated, 
even  though  they  should  have  been  cited  in  the  ' '  considerandos, ' '  because  it  is  known 
that  no  appeal  for  annulment  of  judgment  lies  from  the  latter. — Decision  of  March  20, 
1884. 

It  is  not  proper  to  consider  as  violated  the  legal  provisions  which  are  cited  in  an 
appeal  and  which  are  upon  a  matter  distinct  from  that  which  has  served  as  a  basis 
for  the  complaint  in  the  action. — Decision  of  March  28,  1885. 

The  provisions  of  the  law  of  civil  procedure  which  have  a  character  of  mere  prac- 
tice can  not  serve  as  a  basis  for  an  appeal  for  annulment  of  judgment  for  violation  of 
law. — Decision  of  April  8,  1885. 

In  order  that  an  appeal  for  annulment  of  judgment  by  reason  of  breach  of  form 
may  be  taken  in  accordance  with  subdivisions  1  and  4  of  article  1690,  it  is  indispen- 
sable that  the  lack  of  summons  or  citation  for  the  taking  of  evidence  shall  affect  the 
persons  who  are  considered  parties  in  the  action,  and  whose  representation,  there- 
fore, has  been  admitted. — Decision  of  May  1,  1888. 

3  An  appeal  for  annulment  of  judgment  for  violation  of  law  or  doctrine  can  not  be 
based  upon  matters  which  have  not  been  the  subject  of  discussion. — Decisions  of  Sep- 
temher  28,  October  14,  and  December  1,  1885;  March  9,  1887,  and  others. 

It  is  not  licit  to  alter  questions  decided  in  the  judgment  for  the  purposes  of 
appeal. — Decision  of  October  25,  1883. 

Appeals  can  not  be  allowed  which  are  based  upon  affirmations  contrary  to  the  acts 


a 

>i 


LAW    OF    CIVIL    PROCEDURE.  345 

3.  When  the  judgment  grants  more  than  is  prayed  for,  or  does  not 
contain  any  declaration  upon  some  of  the  allegations  made  in  the  action 
at  the  proper  time. 

±.  When  the  decision  contains  contradictory  rulings. 

5.  When  the  decision  disallows  a  plea  of  resjudicata,  provided  that 
this  exception  has  been  pleaded  in  the  action. 

6.  When,  by  reason  of  the  matter  at  issue,  there  has  been  abuse, 
excess,  or  defect  in  the  exercise  of  the  jurisdiction,  either  taking  cog- 
nizance of  a  matter  which  does  not  come  within  the  jurisdiction  of  the 
court  or  judge,  or  in  not  taking  cognizance  thereof  when  it  is  his  duty 
to  do  so.1 

7.  If  in  the  consideration  of  evidence  an  error  of  law  or  of  fact  should 
have  been  committed,  provided  that  the  latter  error  is  apparent  from 
documents  or  authentic  acts  which  show  the  evident  error  of  the  judge.2 

acknowledged  in  the  proceedings  by  the  appellant,  or  against  the  basis  of  the  com- 
plaint.— Decisions  of  February  %%  and  23,  1884. 

A  judgment  which  gives  less  than  what  is  requested  is  not  impertinent  (Decision 
of  January  4,  1887} ,  although  that  which  gives  more  is. — Decision  of  April  29, 1887. 

1  It  is  necessary  to  cite  the  law  which  has  been  violated  by  abuse,  excess,  or  a  defect 
in  the  exercise  of  jurisdiction. — Decision  of  October  17,  1883. 

2  An  appeal  for  annulment  of  judgment  based  upon  an  error  committed  in  the  con- 
sideration of  evidence  does  not  lie,  when  it  is  not  impugned  in  the  manner  prescribed 
in  number  7  of  article  1690  of  the  Law  of  Civil  Procedure. — Decision  of  November 
16,  18S6. 

An  error  of  fact  does  not  exist  in  the  consideration  of  evidence  apparent  from 
authentic  documents  or  acts,  when,  it  being  fully  proven  that  the  estates  which  are 
the  subject  of  litigation  have  more  than  double  the  area  which  appears  in  the  title 
deeds  presented,  the  ad  judging  chamber,  without  rejecting  certain  evidence,  without 
xclusively  considering  other  evidence,  after  analyzing  all  the  evidence  submitted 
by  the  parties  and  in  the  furtherance  of  justice,  comparatively  considers  the  result  of 
all  that  taken,  and  for  the  reasons  which  it  states,  forms  its  opinion,  which  can  not 
be  substituted  by  that  of  any  of  the  litigants. — Decision  of  December  22,  1886. 

According  to  rule  7  of  article  1690  of  the  Law  of  Civil  Procedure,  the  error  of  fact 
must  be  apparent  from  authentic  documents  which  show  the  evident  mistake  of  the 
judge,  and  the  declarations  of  witnesses  can  not  be  considered  as  such  for  the  pur- 
pose of  demonstrating  the  error  of  fact,  because  the  consideration  thereof  pertains 
exclusively  to  the  adjudging  chamber. — Decision  of  April  3,  1888. 

The  declarations  of  witnesses  can  not  be  considered  as  authentic  acts  for  the  pur- 
poses of  an  annulment  of  judgment,  because  the  consideration  thereof  pertains  exclu- 
sively to  the  adjudging  chamber,  and  the  admission  of  the  same  is  not  proper,  as 
prescribed  by  rule  7  of  article  1690  of  the  Law  of  Civil  Procedure. — Decision  of  April 
23,  1888. 

The  judgment  rendered  at  first  instance  can  not  be  considered  as  documentary  evi- 
dence submitted  in  the  action  in  the  manner  prescribed  by  lawr,  when  it  is  cited  as 
the  only  basis. — Decision  of  April  30,  1888. 

An  appeal  for  annulment  of  judgment  does  not  lie  when  the  reasons  alleged  are 
based  upon  findings  of  fact  which  are  contrary  to  the  conclusions  of  the  adjudging 
chamber  in  view  of  the  evidence  submitted  by  the  parties,  without  the  appellant,  in 
thus  considering  the  facts,  citing  any  law  as  violated  relating  to  the  value  of  said  evi- 
dence nor  mentioning  any  fact  which  is  apparent  from  a  document  or  authentic  act 
which  shows  the  evident  error  of  the  judge,  as  is  expressly  required  by  subdivision 


346  LAW    OF    CIVIL    PROCEDURE. 

ART.  1691.  An  appeal  for  annulment  of  judgment  by  reason  of  a 
violation  of  the  essential  forms  of  an  action,  for  the  purposes  of  sub- 
division 2  of  article  1689,  lies: 

1.  For  failure  to  summon,  in  the  first  or  second  instance,  the  per- 
sons who  should  have  been  cited  for  the  action.1 

2.  For  want  of  personal  capacity  in  any  of  the  parties  or  in  the 
solicitor  who  may  have  represented  them.2 

7  of  article  1690,  not  invoked,  on  the  other  hand,  by  the  appellant  to  authorize  the 
appeal.— Decision  of  May  17,  1888. 

When  the  appeal  for  annulment  of  judgment  is  based,  although  this  is  not  stated, 
upon  the  consideration  of  the  evidence  made  by  the  adjudging  chamber,  the  citation 
of  laws  relating  to  points  discussed  in  the  action  can  not  give  grounds  for  its  admis- 
sion; but  it  is  necessary  to  cite  laws  or  legal  doctrine  with  regard  to  the  value  of  said 
evidence  which  constitute  an  error  of  law  or  of  fact,  apparent  from  documents  or 
authentic  acts,  committed  in  said  consideration,  as  is  prescribed  in  subdivision  7  of 
article  1690  of  the  Law  of  Civil  Procedure.— Decision  of  October  27,  1888. 

In  order  that  an  appeal  based  on  case  7  of  article  1690  of  the  Law  of  Civil  Procedure 
may  be  admissible,  it  is  necessary  that  the  law  violated  be  cited  relating  to  the 
value  of  the  evidence,  and  the  acts  or  documents  from  which  the  error  of  law  or  of  fact 
is  apparent. — Decision  of  March  2,  1889. 

The  admission  of  the  appeal  by  reason  of  a  violation  of  law  is  not  proper  when 
relating  to  the  consideration  of  evidence;  it  is  not  included  in  the  provisions  of  article 
1690,  subdivision  7,  of  the  Law  of  Civil  Procedure. — Decision  of  May  1,  1889. 

1  The  representative  of  the  State  having  been  cited,  there  does  not  exist  any  breach 
of  form  based  upon  subdivision  1  of  article  1691  of  the  Law  of  Civil  Procedure  which 
is  invoked. — Decision  of  December  16,  1886. 

According  to  the  provisions  of  article  279  of  this  law,  after  the  defendants  have 
entered  an  appearance  in  the  action,  any  lack  of  formality  in  their  citation  is  cured, 
without  prejudice  to  the  disciplinary  correction  of  the  proper  party;  when  such  is 
the  case,  the  failure  to  summon  mentioned  in  subdivision  1  of  article  1691  of  said  law 
does  not  exist. — Decision  of  December  17,  1886. 

Two  persons  being  bound  by  a  contract  jointly  and  severally,  the  creditor  may 
bring  his  action  against  either  of  them  without  the  failure  to  cite  one  of  the  parties 
serving  as  a  basis  for  an  appeal  for  annulment  of  judgment  by  reason  of  a  breach  of 
form. — Decision  of  July  6,  1887. 

In  order  that  an  appeal  for  annulment  of  judgment  for  violation  of  form  may  be 
taken  in  accordance  with  number  1  of  article  1691,  it  is  necessary  that  one  of  the 
parties  who  should  have  been  cited  for  the  action  was  not  summoned. 

With  regard  to  proceedings  had  in  compulsory  process,  the  failure  to  serve  an  order 
of  sale  can,not  serve  as  a  basis  for  an  appeal  for  annulment  of  judgment. — Decision 
of  November  19, 1887. 

2  The  want  of  personal  capacity  referred  to  in  article  1691,  subdivision  2,  is  that 
which  arises  from  a  deprivation  of  the  full  enjoyment  of  civil  rights. — Decision  of  Sep- 
tember 25,  1883. 

The  want  of  a  cause  of  action  or  right  to  enter  a  complaint  must  not  be  confounded 
with  a  want  of  personal  capacity  to  appear  in  an  action,  and  therefore  does  not 
authorize  the  interposition  of  an  appeal  for  violation  of  form. — Decision  of  April  21, 
1884. 

The  want  of  personal  capacity  herein  referred  to  relates  to  the  absolute  or  relative 
legal  incapacity  to  litigate,  and  not  to  the  right  by  virtue  of  which  litigation  is  entered 
into,  as  the  supreme  court  has  repeatedly  declared. — Decision  of  May  14,  1884. 

The  want  of  personal  capacity  in  any  of  the  parties  or  in  their  solicitor  which  the 


LAW    OF    CIVIL    PROCEDURE.  347 

3.  For  failure  to  take  evidence  in  any  instance  when  it  should  be 
taken  according  to  law.1 

4.  On  account  of  the  failure  to  issue  a  citation  for  any  proceeding 
for  the  taking  of  evidence  or  for  final  judgment  in  any  instance.2 

law  recognizes  as  grounds  for  an  appeal  for  annulment  of  judgment  by  reason  of 
a  breach  of  form,  must  have  occurred  during  the  pendency  of  the  action  and  not 
after  the  parties  have  been  cited  for  judgment. — Decision  of  September  25,  1885. 

The  want  of  personal  capacity  can  serve  only  as  a  basis  for  an  appeal  for  annul- 
ment of  judgment  for  a  breach  of  form,  and  not  by  reason  of  a  violation  of  law. — 
Decision  of  February  10,  1885. 

If  the  personal  capacity  of  the  plaintiff  has  been  duly  proven,  and  the  adjudging 
court  has  recognized  the  same  without  a  protest  on  the  part  of  the  defendant,  the 
latter  can  not  allege  the  want  thereof  for  the  purposes  of  an  appeal. — Decision  of  March 
24,  1885. 

There  is  no  violation  of  form  when  the  want  of  personal  capacity  has  been  made 
good  by  the  new  power  of  attorney  presented  in  the  proceedings  and  other  evidence 
taken  in  the  oral  action. — Decision  of  February  20,  1886. 

If  the  personal  capacity  of  the  widow  in  the  character  in  which  she  litigates  was 
acknowledged  by  a  ruling  in  the  voluntary  testamentary  proceedings  of  her  husband, 
and  recognized  by  the  persons  whom  it  might  prejudice,  said  ruling  has  the  character 
of  a  final  judgment  for  all  judicial  purposes  which  are  related  to  the  succession  to  the 
rights  and  obligations  of  her  deceased  husband,  and  a  decision  to  this  effect  does  not 
incur  the  violation  referred  to  in  subdivision  2  of  article  1691. — Decision  of  March  7, 
1887. 

The  want  of  personal  capacity  in  any  of  the  parties  must  arise,  in  order  that  an 
appeal  for  annulment  of  judgment  for  violation  of  form  may  be  interposed,  from 
the  deprivation  of  the  full  enjoyment  of  civil  rights,  such  as  incapacity  to  appear  in 
court,  in  accordance  with  subdivision  2  of  article  1691. — Decision  of  April  1,  1887. 

The  want  of  personal  capacity  which  is  determined  in  the  second  case  of  this  article 
does  not  refer  to  the  right  under  which  a  person  litigates,  but  to  the  personal  capacity 
to  appear  in  court  in  accordance  with  the  provisions  of  article  533. — Decision  of.  June 
28,  1888. 

1  In  executory  actions  no  other  evidence  is  proper  than  that  which  refers  to  the 
exceptions  pleaded  by  the  debtor  when  he  opposes  the  execution,  and  therefore  the 
taking  of  evidence  in  the  second  instance  is  not  proper  in  accordance  with  law  when 
the  defendant  has  been  declared  in  default  and  has  not  objected  to  the  execution  at 
the  proper  time  and  in  the  proper  manner. — Decision  of  October  1,  1884. 

As  prescribed  in  subdivision  3  of  article  1691  of  the  law  of  civil  procedure,  the 
failure  to  take  evidence  can  only  be  considered  as  a  violation  of  form  for  the  purposes 
of  an  annulment  of  judgment  when  said  evidence  should  be  taken  in  accordance  with 
law. — Decision  of  April  6,  1887. 

2  Failure  to  issue  a  citation  for  proceedings  in  furtherance  of  justice  does  not  con- 
stitute a  violation  of  form. — Decision  of  July  8,  1885. 

An  appeal  for  annulment  of  judgment  is  not  well  taken  when  it  is  based  upon  sub- 
division 4  of  article  1691  of  the  law  of  civil  procedure  on  account  of  documentary 
evidence  having  been  submitted  without  a  citation  of  the  appellant,  when  said  evi- 
dence had  been  declared  inefficient  and  was  considered  as  not  having  been  sub- 
mitted.—Decision  of  October  29,  1887. 

When  the  citation  for  judgment  has  been  issued,  even  though  afterwards  there 
should  be  delays  which  rendered  it  necessary  to  suspend  the  period  fixed  by  law  to 
render  judgment  without  said  proceeding  being  rendered  invalid,  the  violation  of 
form  mentioned  in  subdivision  4  of  article  1691  of  the  law  of  civil  procedure  can  not 
be  pleaded. — Decision  of  March  27,  1889. 


348  LAW    OP    CIVIL    PROCEDURE. 

5.  For  refusal  to  order  any  proceeding  for  the  taking  of  evidence, 
admissible  according  to  law,  and  which  failure  may  have  prevented 
the  presentation  of  any  defense.1 

6.  By  reason  of  a  lack  of  competent  jurisdiction,  when  this  ques- 
tion has  not  been  decided  by  the  supreme  sourt,  and  is  not  included 
in  subdivision  6  of  the  foregoing  article.2 

7.  By  reason  of  the  attendance  to  render  judgment  of  one  or  more 
judges  who  had  been  challenged  in  due  time,  and  for  legal  causes, 
which  challenge  had  been  allowed,  or  denied,  when  it  should  have  been 
allowed.3 

1  If  the  proceedings  were  not  admissible,  on  account  of  the  institution  of  an  action 
of  unlawful  detainer  for  nonpayment,  the  refusal  is  not  included  in  the  provisions 
of  this  section. — Decision  of  March  3, 1884. 

When  a  litigant  in  the  second  instance  demands  a  declaration  under  oath  of  the 
opposite  party,  and  presents  some  papers  to  be  compared  with  their  originals,  without 
their  having  any  direct  relation  to  the  point  at  issue,  this  evidence  must  be  ruled  out 
and,  therefore,  it  can  not  serve  as  a  basis  for  an  appeal  for  annulment  of  judgment. — 
Decision  of  March  24,  1885. 

In  order  that  the  refusal  to  institute  proceedings  for  the  taking  of  evidence  may 
serve  as  a  basis  for  an  appeal  for  annulment  of  judgment  for  violation  of  form,  it  is 
necessary  that  said  proceeding  be  admissible  according  to  law,  and  that  the  failure 
thereof  may  have  prevented  the  presentation  of  a  defense. — Decision  of  April  6,  1887. 

The  refusal  to  admit  documents  not  specially  included  in  the  cases  determined  by 
article  506  of  this  law  does  not  produce  the  violation  of  form  referred  to  in  the  fifth 
paragraph  of  article  1691. — Decision  of  December  31,  1887. 

An  audiencia  which,  in  admitting  the  evidence  which  may  have  been  submitted 
at  the  proper  time  and  in  the  proper  manner,  only  denied  the  claims  with  reference 
to  other  particulars  which  were  submitted  too  late,  because  they  were  not  formulated 
in  the  same  instruments  in  which  the  taking  of  evidence  was  requested,  as  is  pre- 
scribed in  article  706  of  this  law,  but  after  the  presentation  thereof,  for  which  reason 
they  were  not  admissible,  does  not  incur  a  violation  of  form  in  refusing  to  admit  the 
same. — Decision  of  June  23,  1888. 

2  When  the  appellant  has  pleaded  in  the  first  instance  and  again  in  the  second 
instance  the  exception  of  lack  of  jurisdiction,  an  appeal  lies  for  annulment  of  judg- 
ment by  reason  of  a  violation  of  form,  because  a  final  judgment  in  the  matter  can 
not  be  rendered  without  previously  deciding  said  jurisdiction. — Decision  of  July  8, 
1884. 

If  one  of  the  reasons  for  the  appeal  for  annulment  of  judgment  consists  in  impugn- 
ing the  jurisdiction  of  the  municipal  judge  who  has  taken  cognizance  of  the  pro- 
ceedings, this  question  can  not  be  discussed  if  it  has  already  been  the  subject  of 
argument  before  the  third  chamber  of  the  supreme  court. — Decision  of  May  23,  1885. 

Lack  of  jurisdiction,  by  reason  of  the  matter  involved,  is  not  the  question  of 
jurisdiction  referred  to  in  subdivision  6  of  article  1691. — Decision  of  July  3,  1885. 

3  The  abstract  (apuntamiento)  is  not  included  in  the  documents  or  authentic  acts 
referred  to  in  article  1691,  subdivision  7. — Decisions  of  January  15,  1883,and  April 
29,  1885. 

As  prescribed  in  articles  199  and  200  of  the  law  of  civil  procedure,  the  judge  chal- 
lenged must  order  a  separate  record  for  the  hearing  of  the  issue  of  the  challenge, 
and  must  abstain  during  the  hearing  and  determination  thereof  from  taking  part  in 
the  proceedings  of  the  action  or  in  the  issue;  therefore,  when  the  municipal  judge, 
substituting  the  judge  of  first  instance,  not  only  disallows  the  challenge  interposed 


LAW    OF    CIVIL    PROCEDURE.  349 

8.  On  account  of  the  judgment  having  been  rendered  by  a  less  num- 
ber of  judges  than  that  prescribed  by  law. 

ART.  1692.  An  appeal  for  annulment  of  judgment  by  reason  of  a 
violation  of  law  or  legal  doctrine  shall  not  lie — 

1.  In  actions  of  lesser  import. 

2.  In  actions  of  unlawful  detainer,  when  the  annual  rental  of  the 
estate  does  not  exceed  5,000  pesetas. 

3.  In  executory,  possessory,  and  other  actions  in  which,  after  their 
conclusion,  another  action  can  be  instituted  for  the  same  cause,  ex- 
cepting the  cases  mentioned  in  subdivisions  3  and  4  of  article  1688. 

In  all  these  actions  appeals  shall  lie  for  annulment  of  judgment 
based  upon  a  breach  of  any  of  the  forms  of  the  action  mentioned  in 
the  foregoing  article.1 

ART.  1693.  No  appeal  for  annulment  of  judgment  shall  lie  from  rul- 
ings of  audiencias  in  proceedings  for  the  execution  of  judgments,  unless 
substantial  points  are  decided  which  are  not  controverted  in  the  action 
nor  decided  in  the  judgment,  or  which  are  contradictory  thereto.2 

in  due  time  by  the  defendants,  and  based  upon  a  legitimate  cause,  but  proceeds  to 
render  a  final  judgment  without  awaiting  the  previous  institution  of  the  challenge  pro- 
ceedings, an  appeal  for  annulment  of  judgment  by  reason  of  a  violation  of  form 
may  be  interposed,  as  it  is  included  in  the  case  mentioned  in  subdivision  7  of  article 
1691.—  Decision  of  December  17,  1886. 

If  in  the  written  appeal  the  cases  of  article  1691  in  which  the  reasons  for  the  appeal 
are  included  are  not  stated,  and  no  attempt  has  been  made  to  do  so,  an  appeal  for 
violation  of  form  can  not  be  considered,  even  if  the  causes  should  be  true  and  legal. — 
Decisions  of  September  13  and  November  20,  1884. 

An  appeal  for  annulment  of  judgment  by  reason  of  a  violation  of  form  can  be 
based  only  on  one  of  the  causes  specifically  mentioned  in  article  1691  of  the  law  of 
civil  procedure. — Decision  of  November  23,  1884. 

1 A  judgment  which  confines  itself  to  prescribing  the  measures  necessary  to  execute 
a  final  judgment  in  accordance  with  the  law  of  procedure  can  not  be  appealed  from 
for  annulment  of  judgment. — Decision  of  February  21,  1884- 

When  the  judgment  appealed  from  has  been  rendered  in  an  issue  incidental  to  an 
executory  action,  an  appeal  for  annulment  does  not  lie. — Decision  of  September  26, 1884. 

No  appeal  is  allowed  in  executory  actions,  and  therefore  it  does  not  lie  in  issues 
incidental  thereto. — Decision  of  October  10,  1884:- 

A  decision  rendered  in  accordance  with  articles  395  et  seq.  of  the  mortgage  law 
which  declares  the  ownership  of  some  estates  for  the  purpose  of  their  inscription  in 
the  registery  of  property  must  not  in  any  manner  whatsoever  be  considered  final, 
because  another  action  can  be  instituted  for  the  same  cause. — Decision  of  April  29, 
1887. 

When  the  ruling  appealed  from  has  issued  in  attachment  proceedings  arising  in  an 
executory  action,  in  which,  as  the  Supreme  Court  has  already  declared,  no  appeal 
for  annulment  of  judgment  by  reason  of  a  violation  of  law  can  lie,  it  can  not  be  taken 
in  issues  incidental  thereto. — Decision  of  October  15,  1888. 

2 This  article  refers  to  the  admission  of  the  appeal,  and  can  not  be  violated  by  a 
decision  of  an  audiencia  from  which  an  appeal  is  going  to  be  taken. — Decision  of  Feb- 
r -in i i'n  5,  1886. 

When  the  judgment  appealed  from  relates  to  the  payment  of  a  specific  sum,  and 
the  proceedings  have  been  in  accordance  with  the  provisions  of  articles  931  et  seq.  of 


350  LAW    OF    CIVIL    PROCEDURE. 

ART.  1694.  In  order  that  appeals  for  annulment  of  judgment  based 
upon  a  breach  of  form  be  admitted,  it  is  indispensable  that  the  cor- 
rection of  the  error  shall  have  been  requested  in  the  instance  in  which 
it  was  committed;  and  if  it  should  have  occurred  in  the  first  instance, 
the  request  be  again  presented  in  the  second,  in  accordance  with  the 
provisions  of  article  858. 1 

ART.  1695.  The  appeal  shall  lie,  even  though  not  preceded  by  the 
request  mentioned  in  the  foregoing  article,  provided  that  the  violation 
has  been  committed  in  the  second  instance,  when  it  becomes  impossible 
to  except  thereagainst. 

ART.  1696.  A  person  desiring  to  interpose  an  appeal  for  annulment 
of  judgment  (if  not  declared  a  poor  person)  shall  deposit  2,500  pesetas 
in  the  establishment  provided  for  the  purpose,  when  the  judgments 
rendered  in  first  and  second  instance  conform  in  all  points,  when  the 
appeal  is  based  upon  a  violation  of  law  or  of  legal  doctrine,  or  from 
the  decisions  of  amicable  compounders,  or  from  judgments  rendered 
in  acts  of  voluntary  jurisdiction. 

It  shall  be  understood  that  the  judgments  referred  to  conform  in  all 
points,  even  though  they  vary  in  the  adjudication  upon  costs. 

the  law  of  civil  procedure,  there  is  no  remedy  whatsoever  against  the  same,  as  pre- 
scribed in  the  last  paragraph  of  article  943,  nor  is  the  case  included  in  the  provisions 
of  article  1693,  because  it  does  not  decide  any  new  question  nor  is  it  contradictory. — 
Decision  of  December  10,  1886. 

A  ruling  which,  relating  to  the  strict  fulfillment  of  a  final  judgment,  orders  that 
the  compulsory  process  be  continued  for  the  purpose  of  recovering  the  costs  which 
were  taxed  in  said  judgment  without  prejudice  to  continuing  the  main  action,  is  not 
in  contradiction  to  the  judgment  rendered,  nor  does  it  decide  any  new  point,  and 
therefore  has  no  final  character,  and  an  appeal  for  annulment  of  judgment  does  not 
lie. — Decision  of  June  14,  1887. 

When,  without  considering  whether  the  decision  appealed  from  is  definite  or  not, 
it  relates  to  the  execution  of  a  judgment  of  amicable  compounders,  in  accordance 
with  the  provisions  of  article  1693  of  the  law  of  civil  procedure,  an  appeal  for  annul- 
ment of  judgment  lies  only  when  it  decides  substantial  questions  not  controverted  in 
the  action  nor  decided  in  the  judgment,  or  which  are  in  contradiction  to  the  said 
judgment. — Decision  of  April  16,  1888. 

A  judgment  having  been  rendered  from  which  an  appeal  is  taken  in  an  issue  inci- 
dental to  the  execution  of  a  final  judgment  rendered  by  amicable  compounders,  an 
appeal  for  annulment  of  judgment  does  not  lie  thereagainst,  according  to  article  1693 
of  the  law  of  civil  procedure,  as  it  is  not  pleaded  that  it  is  included  in  any  of  the 
exceptions  in  which  said  appeal  is  allowed  in  accordance  with  the  said  article,  and 
therefore  the  admission  of  the  appeal  is  not  proper  in  accordance  with  the  provisions 
of  subdivision  3  of  article  1727  of  the  said  law. — Decision  of  June  20,  1888. 

*It  is  not  sufficient  to  state  the  error;  it  is  necessary  to  properly  request  the  cor- 
rection thereof. — Decision  of  January  18,  1868. 

In  order  that  an  appeal  for  breach  of  form  may  lie,  it  is  necessary  that  the  correc- 
tion of  the  error  be  requested  in  the  court  where  it  was  committed. — Decision  of 
October  6,  1883. 

When  the  appellant  pleaded  in  the  first  instance,  and  again  in  the  second,  the 
exception  of  incompetency,  he  complied  with  the  requisites  mentioned  in  this 
article. — Decision  of  July  8, 1884. 


LAW    OF    CIVIL    PROCEDURE.  351 

The  deposit  shall  be  of  1,250  pesetas  when  the  appeal  is  interposed 
by  reason  of  a  breach  of  form.1 

ART.  1697.  In  cases  in  which  the  amount  involved  is  less  than  5,000 
pesetas,  the  deposit  shall  be  limited  to  the  sixth  part  of  the  amount 
thereof  if  the  appeal  which  it  is  desired  to  interpose  is  based  upon  a 
violation  of  law  or  of  legal  doctrine,  or  should  be  from  a  decision  of 
amicable  compounders  or  from  that  rendered  in  acts  of  voluntary  juris- 
diction, and  to  one-twelfth  of  said  amount  if  it  were  based  upon  a 
breach  of  form.2 

SECTION  III. — Preparation  of  the  appeal  for  annulment  of  judgment 
by  reason  of  a  violation  of  law  or  of  legal  doctrine. 

ART.  1698.  A  person  who  intends  to  interpose  an  appeal  for  annul- 
ment of  judgment  for  violation  of  law  or  of  legal  doctrine  shall  present 
to  the  chamber  which  rendered  judgment,  within  a  period  of  ten  days 
(which  can  not  be  extended),  counted  from  the  day  following  the  noti- 
fication thereof,  a  written  petition  setting  forth  his  intention  of  inter- 
posing the  appeal,  and  requesting  that  he  be  furnished  therefor  a  literal 
copy  of  the  judgment,  as  well  as  of  that  rendered  in  the  first  instance, 
if  all  or  some  of  the  resultandos  (statements  of  facts)  and  considerandos 
(conclusions  of  law)  thereof  have  been  accepted  and  not  textually 
reproduced  by  the  superior  court. 

If  ten  days  should  elapse  without  said  petition  being  presented,  the 
judgment  shall  become  final.3 

ART.  1699.  The  audiencia  shall  order  that  the  certificate  be  issued, 
provided  that  it  shall  have  been  requested  within  the  period  fixed  in 
the  foregoing  article,  and  shall  also  order  that  the  other  parties  be 
cited  to  appear  before  the  admission  chamber  of  the  supreme  court 
within  the  period  of  sixty  days. 

1  The  judgments  shall  be  understood  to  conform  in  all  points  when  they  vary  only 
with  regard  to  the  adjudication  upon  costs,  and,  therefore,  it  is  necessary  that  the 
deposit  prescribed  in  this  article  be  made  in  order  that  the  appeal  be  admitted. — 
Decision  of  October  14,  1884. 

When  a  person  has  been  authorized  to  defend  as  a  poor  person,  without  prejudice 
to  proving  his  right  to  this  benefit,  if  he  has  not  obtained  the  declaration  before  the 
interposition  of  the  appeal,  he  is  required  to  make  the  deposit. — Decisions  of  October 
11  and  16,  September  22,  and  November  8,  1886. 

In  accordance  with  the  provisions  of  article  1696  of  this  law,  it  is  necessary  that  the 
appellant  shall  have  obtained  a  declaration  of  poverty  in  order  that  he  be  exempted 
from  making  the  deposit  required  by  the  said  article  when  the  judgments  rendered 
in  the  first  and  second  instance  conform  in  all  points.  It  is  not  sufficient,  therefore, 
that  he  has  instituted  proceedings  to  secure  said  declaration. — Decision  of 'June  28, 1887. 

2  Article  1697  relates  to  the  amount  involved  in  the  action  in  the  first  instance. — 
Decision  of  April  28,  1885. 

3  The  period  in  which  to  interpose  the  appeal  can  not  be  extended  and  is  not  inter- 
rupted by  a  request  for  an  elucidation  of  the  judgment. — Decision  of  February  12, 1876. 


352  LAW    OF    CIVIL    PROCEDURE. 

This  period  shall  begin  from  the  day  following  that  of  the  delivery 
of  the  certificate.  A  memorandum  of  the  date  of  delivery  shall  be 
entered  at  the  foot  of  said  document. 

ART.  1700.  If  the  above-mentioned  certificate  should  be  requested 
outside  of  the  period  prescribed  in  article  1698,  or  a  certificate  of  deci- 
sions or  rulings  in  the  actions  or  incidental  issues  specified  in  articles 
1692  and  1693,  or  of  orders  of  mere  procedure,  the  audiencia  shall 
deny  the  same  in  a  ruling  which  shall  state  the  reasons  for  the  denial, 
as  well  as  the  date  of  the  judgment,  that  of  the  notification  thereof  and 
of  the  presentation  of  the  petition  requesting  the  certificate. 

ART.  1701.  A  certified  copy  of  the  ruling  denying  the  certificate  of 
the^  judgment  shall  be  given  at  the  time  of  the  notification  to  the  per- 
son who  m&y  have  requested  it,  in  order  that,  if  he  deems  it  proper, 
he  may  appeal  in  complaint  to  the  admission  chamber  of  the  supreme 
court,  within  the  period  of  sixty  days,  counted  from  the  day  follow- 
ing that  of  the  delivery,  a  memorandum  of  which  shall  be  entered  at 
the  foot  of  the  certificate. 

Upon  the  expiration  of  this  period  there  shall  be  no  remedy  what- 
soever. 

ART.  1702.  The  audiencia  may  order,  at  the  instance  of  a  party, 
that  the  proceedings  be  not  suspended,  notwithstanding  the  issue  of  the 
certified  copy  referred  to  in  the  foregoing  article;  but  if  the  supreme 
court  should  allow  the  remedy  of  complaint,  the  proceedings  shall  be 
suspended,  reserving  the  provisions  contained  in  article  1784. 

ART.  1703.  The  petitioner  shall  present  his  written  complaint  to  the 
third  chamber  of  the  supreme  court  within  the  period  prescribed  in 
article  1701,  accompanying  the  certified  copy  of  the  ruling  denying 
the  issue  of  the  certificate. 

The  chamber,  without  further  proceedings,  shall  render  the  decision 
which  may  be  proper,  against  which  there  shall  be  no  further  remedy. 

ART.  1704.  If  the  party  who  has  been  denied  the  certificate  of  the 
judgment  should  have  been  declared  a  poor  person,  he  may  request 
that  the  certified  copy  of  the  ruling  denying  the  same  be  sent  ex  officio 
to  the  supreme  court,  and  may  in  the  same  instrument  make  the 
appointment  of  an  attorney  and  solicitor  to  defend  and  represent  him 
in  said  court. 

In  such  case  the  provisions  of  articles  1707  et  seq.  shall  be  observed, 
a  period  of  ten  days,  which  can  not  be  extended,  being  allowed  in 
which  to  bring  the  remedy  in  complaint. 

ART.  1705.  If  the  supreme  court  should  affirm  the  ruling  denying 
the  certificate,  the  audiencia  which  rendered  the  same  shall  be*fnf ormed 
thereof  for  the  proper  legal  purposes. 

If  the  supreme  court  should  reverse  said  ruling,  it  shall-  issue  let- 
ters mandatory  to  the  audiencia,  commanding  the  issuance  of  the  cer- 
tificate requested. 


LAW    OF    CIVIL   PROCEDURE.  353 

ART.  1706.  By  the  first  direct  mail  after  the  date  of  the  delivery  of 
the  certificate  of  the  judgment  to  the  party  intending  to  interpose  an 
appeal  for  annulment  of  judgment,  there  shall  be  forwarded  to  the 
supreme  court: 

1.  A  literal  certified  copy,  authenticated  by  the  presiding  judge  of 
the  chamber  which  rendered  judgment,  of  the  reserved  votes,  if  there 
be  any,  or  that  there  were  none,  if  such  was  the  case. 

2.  The  original  abstract  (apuntamiento)  of  the  record,  leaving  an 
authenticated  copy  of  said  abstract  in  the  record,  in  which  copy  a 
memorandum  shall  be  made  of  the  agreement  of  the  parties  to  the 
correctness  thereof. 

The  date  of  the  sailing  of  the  vessel  carrying  the  mail  to  the  Penin- 
sula, and  upon  which  the  letter  of  transmittal  of  the  documents  above 
mentioned  is  sent,  shall  also  be  stated  in  the  record  and  notified  to  the 
parties.  The  name  of  the  vessel  and  of  the  company  or  individual 
owning  the  same  shall  also  be  stated. 

ART.  1707.  If  the  litigant  requesting  the  certificate  of  the  judgment 
should  have  been  declared  a  poor  person,  he  may  in  the  same  petition 
request  that  it  be  forwarded  ex  officio  to  the  supreme  court,  which 
shall  be  done  after  the  proper  summonses. 

Should  no  such  request  be  made,  the  certificate  shall  be  delivered  to 
the  petitioner  for  such  purposes  as  may  be  legal  and  proper.1 

ART.  1708.  A  poor  litigant  may  also,  in  requesting  the  certificate, 
appoint  an  attorney  to  defend  him  and  a  solicitor  to  represent  him 
before  the  supreme  court. 

Should  he  not  make  these  appointments,  or  if  the  persons  desig- 
nated should  not  accept  the  same,  they  shall  be  appointed  ex  officio. 

ART.  1709.  After  the  certificate  referred  to  in  the  foregoing  article 
has  been  received  by  the  supreme  court,  the  admission  chamber  shall 
order,  if  the  appellant  should  have  appointed  an  attorney  and  a  solic- 
itor, that  they  be  required  to  state  whether  or  not  they  accept  the 
defense  and  representation. 

If  they  should  answer  in  the  affirmative,  the  certificate  shall  be 
delivered  to  the  solicitor,  in  order  that,  within  a  period  of  twenty 
days,  he  may  file  the  appeal  for  annulment  of  judgment.2 

1  When  the  appellant  who  has  been  declared  a  poor  person  does  not  request  that 
the  certificate  of  the  judgment  to  interpose  the  appeal  be  transmitted  ex  officio  to 
the  supreme  court,  but  that  it  be  delivered  to  his  solicitor,  the  period  to  interpose 
the  appeal  must  be  counted  from  the  date  of  the  delivery. — Decision  of  October  8, 1885. 

In  the  case  of  article  1707,  the  summons  must  be  made  without  fixing  the  period 
of  forty  days  or  any  other,  because  in  such  case  the  appearance  and  the  hearing  and 
determination  of  the  appeal  is  governed  by  the  procedure  and  terms  prescribed  in 
article  1709. — Decisions  of  December  14  and  17,  1885,  and  April  28,  1886. 

2  According  to  this  article  an  appeal  by  reason  of  violation  of  law  must  be  filed 
within  the  period  of  twenty  days,  which  shall  begin  to  be  counted  from  the  date 
following  that  of  the  notification  of  the  order  by  which  the  delivery  of  the  record 

2901 23 


354  LAW   OF    CIVIL    PROCEDURE. 

ART.  1710.  If  the  person  interested  should  not  have  appointed  an 
attorney  or  solicitor,  or  if  the  latter  should  not  have  appeared  on  his 
behalf  with  a  proper  power  of  attorney,  after  ten  days  following  the 
transmission  of  the  certificate  by  the  audiencia,  the  chamber  of  the. 
supreme  court  shall  order  that  the  deans  of  the  respective  colleges 
appoint  such  persons  whose  turn  it  is  to  be  given  the  same.  The  same 
order  shall  be  issued  if  those  appointed  by  the  party  interested,  or  any 
of  them,  should  refuse  to  accept  the  appointment. 

ART.  1711.  After  the  attorney  and  solicitor  have  been  appointed,  the 
chamber  shall  order  that  a  certified  copy  of  the  judgment  be  delivered 
to  the  latter,  in  order  that,  within  the  period  of  twenty  days,  he  may 
present  the  appeal,  authorized  with  the  signature  of  the  attorney.  * 

ART.  1712.  If  the  attorney  appointed  by  the  party  or  ex  officio  should 
not  consider  that  an  appeal  lies,  he  shall  so  state  in  writing,  but  with- 
out giving  the  reasons  for  his  opinion,  within  a  period  of  three  days. 
In  such  case  a  new  attorney  shall  be  appointed  within  the  two  days 
following,  and  if  he  should  concur  in  the  opinion  of  the  first  attorney, 
a  third  one  shall  be  appointed.  The  provisions  affecting  the  first 
attorney  shall  be  obligatory  for  the  other  two. 

The  attorney  who  does  not  return  the  record  within  three  days  and 
state  his  opinion  that  an  appeal  would  not  be  well  taken,  is  bound  to 
file  said  appeal  within  the  period  prescribed  in  the  foregoing  article.2 

ART.  1713.  If  the  three  attorneys  should  concur  in  the  opinion  that 
no  appeal  lies,  the  record  shall  be  transmitted  to  the  representative  of 

for  the  purpose  of  preparing  the  appeal  was  ordered,  and  therefore  an  appeal  filed 
after  the  termination  of  said  period  is  not  admissible. — Decision  of  June  8,  1888. 

The  period  within  which  to  interpose  an  appeal  for  annulment  of  judgment  by 
reason  of  a  violation  of  law,  in  case  that  the  appellant  appears  as  a  poor  person  and 
the  certificate  of  the  judgment,  therefore,  was  transmitted  ex  officio,  is  twenty  days, 
counted  from  the  date  of  the  notification  of  the  order,  as  is  specifically  prescribed  by 
this  article,  for  which  reason  an  appeal  filed  outside  of  the  aforementioned  period  of 
twenty  days  is  not  admissible  according  to  the  provisions  of  article  1727,  subdivision 
1,  and  article  1726.— Decision  of  September  27,  1888. 

1  After  an  attorney  and  a  solicitor  have  been  appointed  ex  officio  for  the  appellant, 
as  prescribed  in  this  article,  the  appeal  interposed  can  not  be  admitted  after  the 
expiration  of  the  twenty  days  fixed  for  the  purpose. — Decision  of  November  7,  1883. 

The  period  of  twenty  days  begins  from  the  day  following  that  on  which  the  cer- 
tificate is  ordered  delivered  to  the  solicitor. — Decisions  of  August  21  and  December  4, 
1884. 

After  the  certified  copy  of  the  judgment  has  been  delivered  to  the  counsel  of  the 
poor  litigant  appointed  ex  officio,  it  is  necessary  that  the  appeal  be  filed  within  a 
period  of  twenty  days,  counted  from  the  day  following  that  of  the  notification  of 
the  order  which  orders  the  delivery  of  the  record  to  the  solicitor;  otherwise  the 
appeal  shall  not  be  allowed. — Decisions  of  January  5  and  28  and  February  26,  1885. 

2  The  period  of  twenty  days  must  be  counted  from  the  day  following  the  notifica- 
tion of  the  order  by  which  the  record  was  ordered  delivered  to  the  solicitor,  and  not 
from  the  day  on  which  an  order  is  issued  to  file  the  appeal  by  reason  of  the  record 
being  returned  outside  of  the  legal  period. — Decision  of  May  13,  1886. 


LAW    OF    CIVIL    PROCEDURE.  355 

the  department  of  public  prosecution,  in  order  that  he  may  file  the 
appeal  within  a  period  of  ten  days,  if  he  considers  that  said  appeal 
legally  lies;  otherwise  he  shall  return  the  record  marked  "Examined" 
(visto). 

In  the  latter  case  the  chamber  shall  declare  that  the  appeal  does  not 
lie,  and  shall  communicate  this  decision  to  the  audiencia,  returning  the 
abstract.1 

SECTION  IV.  —  Interposition  and  admission  of  an  appeal  for  violation 

of  law  or  of  doctrine. 

ART.  1714.  The  party  obtaining  the  certified  copy  of  the  judgment 
shall  file  the  appeal  for  annulment  of  judgment  in  the  admission 
chamber  of  the  supreme  court  within  a  period  of  sixty  days,  which 
period  shall  begin  to  be  counted  from  the  day  following  that  of  the 
delivery  of  the  certificate. 

Upon  the  expiration  of  this  period  the  judgment  shall  become  final, 
and  the  appeal  shall  not  be  admitted  even  though  no  entry  of  default 
has  been  requested  by  the  opposite  party.2 

ART.  1715.  As  soon  as  a  solicitor  suificiently  empowered  appears, 
stating  that  he  intends  to  file  an  appeal  for  annulment  of  judgment, 
the  chamber  shall  order  that  he  be  considered  a  party  to  the  action, 
and  that  the  record,  with  a  certificate  of  the  reserved  votes  and  the 
abstract,  be  delivered  to  him,  if  he  should  so  request.  3 

ART.  1716.  To  the  appeal  shall  be  attached  — 

1.  The  power  which  shows  that  the  solicitor  is  the  legal  representa- 
tive of  the  party,  unless  he  has  been  appointed  ex  offido  or  unless  he 
has  previously  presented  the  same.4 


appeals  for  a  violation  of  law  or  breach  of  form  instituted  by  persons  declared 
poor  can  not  be  interposed  by  an  attorney  appointed  by  the  appellant  when  the 
record  has  already  been  referred  to  the  three  attorneys  ex  offido  and  the  period  for  the 
summons  has  already  expired,  because  it  would  be  a  retrogression  in  the  proceed- 
ings. —  Decision  of  September  26,  1884. 

2  An  appeal  signed  only  by  the  attorney  and  solicitor  of  the  party  and  not  by  the 
party  interested  can  not  be  acted  upon.  —  Decision  of  May  24,  1882. 

3  The  omfssion  of  the  presentation  of  the  power  of  attorney  by  the  solicitor  renders 
the  admission  of  the  appeal  for  annulment  of  judgment  impossible,  unless  said  solic- 
itor has  been  appointed  ex  offido  or  has  presented  said  power  before  in  the  same  pro- 
ceedings.    The  absence  thereof  can  not  be  made  good  by  the  statement  of  the  solicitor 
to  the  effect  that  his  representation  was  proven  in  the  proceedings  had  before  the 
audiencia,  because  the  law  requires  that  the  power  of  attorney  be  presented  in  the 
proceedings  had  in  the  appeal.  —  Dedsion  of  April  10,  1886. 

4  When  some  litigants  are  declared  poor,  but  the  solicitor  who  appears  for  them 
has  not  been  appointed  ex  offido  or  apud  nacta,  the  appeal  can  not  be  allowed  if  the 
proper  power  of  attorney  executed  by  said  parties  is  not  presented,  because  their 
personal  capacity  is  not  proven.  —  Decisions  of  June  22  and  July  22,  1885. 


356  LAW    OF    CIVIL    PROCEDURE. 

2.  Certified  copy  of  the  judgment.1 

3.  The  document  showing  that  the  deposit  referred  to  in  articles 
1696  and  1697  has  been  made  when  it  is  necessary.2 

4.  In  actions  of  unlawful  detainer,  when  the  lessee  or  tenant  is  the 
appellant,  he  shall  also  present  the  document  showing  the  payment  or 
deposit  of  the  rental,  in  accordance  with  the  provisions  of  article  1564. 

5.  As  many  copies  of  the  appeal,  drafted  on  ordinary  paper,  signed 
by  the  solicitor,  as  there  are  other  litigants  who  may  have  been  sum- 
moned in  the  person  of  their  solicitors. 

These  copies  shall  be  delivered  to  said  parties  when  their  appearance 
becomes  of  record. 

ART.  1717.  If  the  document  mentioned  in  subdivision  3  of  the  fore- 
going article  should  not  be  presented,  and,  in  a  proper  case,  that  men- 
tioned in  subdivision  4,  the  appeal  shall  be  ordered  returned  to  the 
appellant. 

ART.  1718.  The  paragraph  of  article  1690  upon  which  the  appeal  is 
based  shall  be  stated  in  the  petition,  and  the  law  or  legal  doctrine 
alleged  to  have  been  violated  shall  be  precisely  and  clearly  cited,  as 
well  as  the  manner  in  which  the  violation  occurred. 

If  there  should  be  two  or  more  bases  or  reasons  for  the  appeal,  they 
shall  be  stated  in  separate  and  numbered  paragraphs.3 

ART.  1719.  The  appellants  for  annulment  of  judgment  shall  estab- 
lish before  the  audiencia  that  they  have  prepared  the  appeal  in  the 
supreme  court  within  the  legal  period.  This  shall  be  done  within 

1  In  order  that  the  supreme  court  may  decide  as  to  whether  an  appeal  has  been 
interposed  in  time  or  not,  it  is  necessary  that  in  the  certificate  of  the  judgment  the 
notification  of  the  same  be  inserted  in  full  or  in  brief,  as  well  as  the  petition  for  the 
certificate  and  the  order  granting  the  same. — Decision  of  May  19,  1885. 

2An  appeal  can  not  be  allowed  when  the  document  is  not  presented  showing  that 
the  deposit  has  been  made,  nor  the  certified  copy  of  the  declaration  of  poverty, 
although  it  should  appear  from  the  record  that  proceedings  therefor  have  been  insti- 
tuted.— Decision  of  June  18,  1886. 

In  order  that  the  appellant  may  be  excused  from  the  obligation  of  making  the 
deposit,  it  is  not  sufficient  that  he  has  instituted  proceedings  to  secure  a  declaration 
of  ^poverty,  but  it  is  necessary  that  this  declaration  has  already  been  made. — Decision 
of  May  14,  1886. 

3As  the  Supreme  Court  has  repeatedly  declared,  the  citation  of  laws  and  doctrine 
as  violated  can  not  be  taken  into  consideration  for  the  purposes  of  an  appeal  for 
annulment  of  judgment  when  it  is  not  stated  in  what  manner  the  violation  has 
occurred;  and,  therefore,  vague  citations  can  not  serve  as  a  basis  for  an  appeal  for 
annulment  of  judgment. — Decision  of  June  7,  1884. 

It  is  impossible  to  determine  whether  the  doctrine  violated  is  or  is  not  applicable 
to  a  specific  case  if  the  manner  in  which  it  is  supposed  to  have  been  violated  is  not 
stated. — Decision  of  July  2,  1886. 

Although  an  appeal  for  annulment  of  judgment  does  not  lie  from  the  considerandos 
of  judgments,  this  is  understood  when  the  adjudging  part  thereof  is  based  upon  other 
findings  and  does  not  violate  any  of  the  laws  cited  against  said  considerandos. — Deci- 
sion of  July  2,  1887. 


LAW    OF    CIVIL    PKOCEDUBE.  357 

the  period  of  forty-five  days  from  the  day  following  the  expiration  of 
said  legal  period. 

Should  they  not  do  so,  the  audiencia  shall  order,  at  the  instance  of  a 
party,  that  the  judgment  appealed  from  be  executed. 

ART.  1720.  After  the  appeal  for  annulment  of  judgment  for  viola- 
tion of  law  or  of  legal  doctrine  has  been  interposed  in  the  proper  man- 
ner and  at  the  proper  time,  the  record  shall  be  transmitted  to  \hvfiscal 
for  a  period  of  ten  days,  in  order  that  he  may  give  his  opinion  as  to 
whether  or  not  the  appeal  lies. 

ART.  1721.  If  ih^  fiscal  should  be  of  the  opinion  that  the  appeal  lies, 
he  shall  return  the  record  endorsed  "examined"  (wstos). 

If  he  is  of  the  opinion  that  the  appeal  in  toto  or  in  part  does  not  lie, 
being  included  in  one  of  the  cases  mentioned  in  article  1727,  he  shall 
state  in  a  written  argument  the  legal  grounds  upon  which  he  bases 
his  opinion. 

The  secretary  shall  give  a  literal  copy  of  this  opinion  drafted  on 
ordinary  paper  to  the  appellant,  and  also  to  the  appellee,  if  the  latter's 
appearance  is  of  record  or  should  be  of  record  before  the  day  of  the 
hearing. 

ART.  1722.  Upon  the  return  of  the  record  by  the  fiscal  it  shall  be 
referred  to  the  justice ponente  for  six  days,  in  order  that  he  may  pre- 
pare the  case  and  orally  submit  it,  together  with  such  decision  as  he 
may  deem  proper,  to  the  deliberation  of  the  chamber. 

ART.  1723.  If  in  the  opinion  of  the  fiscal  the  admission  of  the  appeal 
was  not  proper  because  he  considered  it  included  in  one  of  the  cases 
mentioned  in  subdivisions  1  and  2  of  article  1727,  the  chamber  shall, 
without  further  proceedings,  decide  what  it  may  deem  proper. 

With  the  exception  of  this  case,  if  the  fiscal  should  deem  the  admis- 
sion improper  in  toto  or  in  part  the  chamber  shall  fix  a  day  for  a  hear- 
ing upon  the  admission,  citing  the  said  fiscal  and  the  parties  whose 
appearance  is  of  record. 

A  similar  order  shall  issue  when,  in  view  of  the  report  of  the 
ponente,  there  might  be,  in  the  opinion  of  said  chamber,  doubts  as  to 
the  admissibility  of  the  appeal  which  requires  a  fuller  examination. 

If  there  should  not  be  such  a  doubt  in  the  opinion  of  a  majority  of 
the  chamber,  it  shall  at  once  render  its  decision,  admitting  the  appeal 
without  a  public  hearing  or  citation  of  the  parties. 

ART.  1724.  For  the  hearing  and  decision  upon  the  admission  of  an 
appeal  the  chamber  shall  be  constituted  in  the  manner  prescribed  in 
article  1741,  even  in  the  case  mentioned  in  the  last  paragraph  of  the 
foregoing  article. 

ART.  1725.  The  representative  of  the  department  of  public  prose- 
cution shall  attend  the  hearing,  if  he  deems  it  proper,  as  well  as  the 
attorneys  for  the  parties. 


358  LAW    OF    CIVIL   PKOCEDUBE. 

The  proceedings  shall  begin  with  a  reading  of  the  judgment  upon 
which  the  appeal  is  based  and  the  reasons  for  an  annulment. 

The  attorney  for  the  appellant  shall  first  state  his  case,  followed  by 
the  attorney  for  the  appellee,  and  finally  by  the  representative  of  the 
department  of  public  prosecution,  if  present. 

The  statements  shall  be  confined  to  the  specific  question  a^  to  whether 
or  not  the  appeal  lies,  or  to  the  reasons  advanced  by  the  fiscal,  without 
the  presiding  judge  allowing  the  question  of  principle  to  be  discussed 
thereat. 

ART.  1726.  Within  ten  days  after  the  hearing,  the  chamber  shall 
render  a  decision  as  to  whatever  it  may  deem  proper.  This  decision 
shall  contain  one  of  the  following  three  declarations: 

First.  That  the  appeal  does  not  lie,  adjudging  the  costs  against  the 
appellant  and  ordering  the  deposit  to  be  returned  to  him. 

This  decision  shall  be  communicated  to  the  proper  audiencia,  with  a 
return  of  the  abstract. 

Second.  That  the  appeal  be  admitted,  ordering  that  the  record  be 
transmitted  to  the  first  chamber. 

Third.  That  the  appeal  be  admitted  with  regard  to  the  grounds 
which  the  chamber  deems  admissible,  and  that  no  appeal  lies  with 
regard  to  the  other  grounds,  and  ordering  that  the  record  be  trans- 
mitted to  the  first  chamber. 

ART.  1727.  The  first  of  the  declarations  mentioned  in  the  foregoing 
article  shall  be  rendered — 

1.  When  the  certificate  was  requested  or  the  appeal  interposed  out- 
side of  the  periods  respectively  fixed  in  articles  1698, 1709, 1711,  and 
1714. 

2.  When  the  documents  mentioned  in  the  first  four  subdivisions  of 
article  1716  have  not  been  presented,  or  the  power  of  attorney-  should 
be  insuflScient,  or  the  deposit  should  not  have  been  made  in  accord- 
ance with  the  provisions  contained  in  articles  1696  and  1697.  * 

1  When  the  appellant  lacks  personal  capacity,  it  is  not  necessary  to  examine  the 
violations  which  he  alleges  to  have  been  committed. — Decison  of  October  23,  1884- 

In  accordance  with  article  1796,  a  person  who  desires  to  interpose  an  appeal  for 
annulment  of  judgment,  if  he  has  not  been  declared  a  poor  person,  must  make  the 
deposit  of  1,000  pesetas  when  the  judgments  agree  in  all  particulars. — Decision  of 
April  14,  1887. 

Should  the  proper  deposit  not  accompany  an  appeal  interposed,  when  said  deposit 
is  necessary,  as  is  the  case  when  a  judgment  rendered  in  first  instance  is  appealed 
from  by  a  person  who  has  not  been  declared  poor  to  litigate,  the  appeal  can  not  be 
admitted  in  accordance  with  the  provisions  of  articles  1126  and  1727,  subdivision  2. — 
Decision  of  April  5,  1888. 

When  the  appellant  has  not  obtained  a  declaration  of  poverty  nor  attaches  to  the 
appeal  the  document  showing  that  he  has  made  the  deposit  in  accordance  with  the 
provisions  of  articles  1716  and  1696,  the  admission  is  not  proper  in  accordance  with 
the  provisions  of  subdivision  2  of  article  1727. — Decision  of  June  20,  1888. 


LAW    OF    CIVIL   PKOCEDUBE.  359 


3.  When  the  judgment  is  not  final  or  is  not  subject  to  an  appeal  for 
annulment  of  judgment,  on  account  of  the  character  or  import  of  the 
action  in  which  it  may  have  been  rendered,  in  accordance  with  articles 
1688,  1692,  and  1693. x 

•i.  When  the  laws  alleged  to  have  been  violated  and  the  manner  in 

hich  they  have  been  violated  have  not  been  cited  with  precision  and 

earness.2 

5.  When  the  law  or  doctrine  cited  relates  to  questions  not  discussed 
the  action.3 

6.  When,  in  alleging  the  violation  of  a  law  which  contains  various 
visions,  the  provision  or  article  supposed  to  have  been  violated  is 

t  specifically  cited. 

7.  When  it  is  evident  that  the  law  which  is  cited  as  violated  is  not 
plicable  to  the  allegations  made  in  the  appeal.4 


acti 
unt: 


1A  decision  rendered  upon  an  issue  incidental  to  intestate  proceedings,  which  is 
limited  to  the  retention  of  some  property,  is  not  definite,  because  it  does  not  termi- 
nate the  proceedings  nor  prevent  the  appellant  from  instituting  the  proper  declara- 
tory action  for  the  purpose  of  asserting  his  rights. — Decision  of  April  19,  1887. 

The  admission  of  the  appeal  is  not  proper  upon  questions  not  discussed  in  the 

ion. — Decision  of  May  9,  1887. 

Appeals  for  annulment  of  judgment  for  breach  of  form  must  not  be  interposed 

til  after  the  final  judgment  has  been  rendered. — Decision  of  June  24,  1887. 

A  decision  containing  the  declaration  of  poverty  of  a  litigant,  does  not  terminate 
the  proceedings  in  question,  but  on  the  contrary,  it  facilitates  the  continuation  thereof; 
therefore,  an  appeal  for  annulment  of  judgment  does  not  lie,  in  accordance  with  sub- 
division 3  of  article  1727. — Decision  of  September  29,  1887. 

The  appeal  can  not  be  admitted  when  the  citation  of  article  1692  is  entirely  omitted 
and  when,  in  addition,  it  is  not  stated  in  what  manner  article  1400  was  violated,  the 
only  legal  provision  which  is  pleaded  to  obtain  the  annulment  of  the  judgment  and 
which,  by  reason  of  its  containing  five  paragraphs,  necessarily  required  the  determi- 
nation prescribed  by  law. — Decision  of  October  5,  1888. 

2  When,  in  addition  to  the  noncitation  of  the  law  upon  which  the  appeal  is  based, 
the  manner  in  which  it  was  violated  is  also  omitted,  the  appeal  can  not  be  acted  upon 
in  accordance  with  subdivision  4  of  article  1727. — Decision  of  November  18, 1887. 

3  Questions  which  have  not  been  raised  and  discussed  at  the  proper  time  in  the 
action  can  not  serve  as  grounds  for  an  appeal  for  annulment  of  judgment,  nor  reasons 
which  relate  to  a  fact  not  mentioned  in  the  action. — Decisions  of  April  18,  23,  and  25, 
and  May  16  and  28,  1884. 

Questions  which  have  not  been  submitted  and  discussed  in  the  action  can  not  be 
referred  to  in  appeals  for  annulment  of  judgment. — Decisions  of  July  4  and  November 
11,  12,  20,  and  25,  1884. 

The  appeal  does  not  lie,  in  accordance  with  articles  1726,  subdivision  1,  and  1727, 
subdivision  5,  of  the  law  of  Civil  Procedure,  when  the  laws  or  doctrine  which  are 
alleged  to  have  been  violated  relate  to  questions  not  discussed  in  the  action. — Decision 
of  April  12,  1885. 

This  appeal  is  not  admissible  when  the  legal  provisions  which  are  supposed  to  have 
been  violated  relate  to  questions  which  have  not  been  discussed  in  the  action. — 
Decision  of  January  20,  1887. 

4  When,  in  order  to  plead  reasons  for  the  annulment  of  the  judgments,  statements 
are  made  which  are  not  true,  the  appeal  is  not  admissible. — Decision  of  December  22, 
1886. 


360  LAW    OF   CIVIL    PROCEDURE. 

8.  When  the  appeal  or  the  violation   alleged  is   based  upon  the 
incongruence  of  the  judgment  with    the  complaint  and  exceptions 
pleaded  and  it  clearly  appears  that  there  is  no  such  incongruence.1 

9.  When  the  appeal  is  based  upon  the  consideration  of  the  evidence, 
unless  it  is  included  in  the  provisions  of  subdivision  7  of  article  1690.2 

10.  When  principles  cited  as  legal  doctrine  are  not  such,  or  when 
opinions  of  jurists  are  cited  to  which  the  legislation  of  the  country 
does  not  give  the  force  of  law. 

An  appeal  for  annulment  of  judgment  does  not  lie  when  the  reasons  upon  which 
it  is  based  are  directed  against  the  citations  made  in  the  judgment  appealed  from  or 
upon  incorrect  suppositions. — Decision  of  January  7,  1887. 

The  appeal  does  not  lie  when  in  the  grounds  therefor  laws  inapplicable  to  the 
question  at  issue  are  cited,  or  incorrect  suppositions  are  made. — Decision  of  July  8, 
1887. 

1  When  the  appeal  or  violation  alleged  relates  to  the  incongruence  of  the  judgment 
with  the  complaint  and  the  exceptions,  and  it  clearly  appears  that  such  incon- 
gruence does  not  exist,  the  admission  of  the  appeal  shall  not  be  proper  in  accordance 
with  the  provisions  contained  in  subdivision  8  of  article  1727. — 'Decision  of  December 
18,  1886. 

A  judgment  which  requires  the  payment  of  the  amount  and  the  interest  thereon, 
demanded  in  a  complaint,  is  not  incongruent,  and  therefore  the  admission  of  said 
appeal  based  upon  such  incongruence  is  not  proper  in  accordance  with  subdivision 
8  of  article  1727 .—Decision  of  May  13,  1887. 

2  When  the  infractions  alleged  are  based  upon  an  improper  consideration  of  the 
evidence  relating  to  the  poverty  pleaded  by  the  appellant,  without  stating  that  there 
has  been  an  error  of  law  or  of  fact  in  the  manner  mentioned  in  subdivision  7  of  arti- 
cle 1890,  in  order  that  it  may  be  considered  as  included  under  this  article,  the  admis- 
sion of  the  appeal  is  not  proper  in  accordance  with  subdivision  9  of  article  1727. — 
Decision  of  May  6, 1887. 

In  accordance  with  the  provisions  of  article  1727,  subdivision  9,  an  appeal  must  not 
be  admitted  when  it  is  based  upon  the  improper  consideration  of  evidence  by  the 
adjudging  chamber  and  does  not  cite  any  law  or  legal  doctrine  as  violated  by  said 
consideration  of  evidence  in  order  to  prove  the  error  of  law  committed  by  the  court 
nor  the  document  or  authentic  act  which  shows  the  error  of  fact,  and  consequently 
subdivision  7  of  article  1690  is  not  applicable  thereto. — Decisions  of  May  16, 23,  and 
81, 1887. 

When  an  appeal  for  annulment  of  judgment  is  interposed  based  upon  a  violation 
of  law  and  authorized  by  subdivision  7  of  article  1690,  no  law  or  legal  doctrine  being 
cited  relating  to  the  value  of  the  evidence,  supposed  to  have  been  infringed  and  con- 
stituting an  error  of  law,  or  no  error  of  fact  apparent  from  documents  or  authentic 
acts  which  demonstrate  the  evident  error  of  the  judge,  the  appeal  is  not  admissible, 
as  prescribed  by  subdivision  9  of  article  1727. — Decision  of  November  5, 1887. 

When,  although  the  appeal  is  based  on  subdivision  1  of  article  1690,  all  the  argu- 
ments advanced  in  support  thereof  are  directed  to  opposing  the  affirmation  of  a  fact 
considered  by  the  adjudging  chamber  without  alleging  an  error  of  fact  or  of  law,  as 
required  by  subdivision  7  of  said  article,  the  said  appeal  is  not  admissible  in  accord- 
ance with  the  provisions  of  subdivision  9  of  article  1727. — Decision  of  December  1, 1887. 

When  the  adjudging  chamber  has  declared,  in  view  of  the  result  of  the  evidence 
submitted  by  either  party,  that  the  plaintiff,  far  from  proving  the  points  included  in 
the  complaint,  appears  to  have  already  received  all  that  he  claims,  which  considera- 
tion is  irrevocable  because  it  is  not  impugned  by  the  appellant,  the  admission  of  the 
appeal  is  not  proper,  in  accordance  with  the  provisions  of  article  1727,  subdivision  9, 
already  cited. — Decision  of  June  4,  1888. 


LAW    OF    CIVIL    PEOCEDUEE.  361 

ART.  1728.  The  second  of  the  declarations  mentioned  in  article  1726 
shall  be  made  when  the  appeal  must  be  admitted  on  account  of  not 
being  included  in  any  of  the  cases  of  the  foregoing  article. 

ART.  1729.  The  third  of  the  declarations  mentioned  in  article  1726 
shall  be  made  when,  the  appeal  being  interposed  in  the  proper  manner 
and  at  the  proper  time,  it  is  based  upon  both  admissible  and  nonad- 
missible  grounds. 

ART.  1730.  No  remed}r  whatsoever  shall  lie  against  the  declarations 
referred  to  in  the  foregoing  articles. 

SECTION  V. — Hearing  and  decision  of  appeals  admitted  for  violation 
of  law  or  legal  doctrine. 

ART.  1731.  After  the  record  has  been  received  by  the  first  chamber 
it  shall  make  an  order  requiring  that  information  of  the  receipt  of  said 
record  be  given  to  the  parties  whose  appearance  is  of  record,  and  that 
it  be  delivered  to  the  appellant  for  examination  for  a  period  of  ten  days. 

ART.  1732.  The  appellant  shall  return  the  record  with  a  written 
document,  stating  that  he  has  examined  the  same.  He  may  therein 
request  that  the  audiencia  be  required  to  transmit  one  or  more  of  the 
documents  on  file  in  the  action,  provided  that  the  following  circum- 
stances are  attendant: 

1.  That  the  statement  made  of  the  documents  in  the  abstract,  or  in 
the  judgment  of  the  audiencia,  is  insufficient  to  properly  consider  their 
value  and  meaning. 

2.  That  they  are  of  such  necessary  and  direct  influence  that  the  deci- 
sion of  the  appeal  may  depend  thereon. 

The  appellant  may  also  request  that  a  certificate  of  any  proceeding 
for  the  taking  of  evidence  had  in  the  action  be  demanded  and  attached 
to  the  record,  if  the  aforementioned  circumstances  are  attendant. 

ART.  1733.  After  the  record  has  been  returned  by  the  appellant,  it 
shall  be  delivered  for  examination,  in  their  order,  to  the  other  litigants 
whose  appearance  is  of  record,  for  an  equal  period  of  ten  days  to  each. 

Said  litigants  may  also  request  the  transcript  and  transmission  of 
documents,  provided  that  the  circumstances  mentioned  in  the  forego- 
ing article  are  attendant. 

ART.  1734.  If  the  appearance  of  the  party  in  whose  favor  judgment 
was  rendered  be  not  of  record,  proceedings  upon  the  appeal  shall  be 
had  without  hearing  said  party  therein;  if,  however,  the  appearance 
of  said  party  becomes  of  record  before  the  hearing,  he  shall  be  con- 
sidered a  party  to  the  appeal,  and  it  shall  be  ordered  that  the  subse- 
quent proceedings  be  had  with  him  and  that  he  be  given  a  copy  of  the 
appeal,  without  retrogressing  in  the  proceedings. 

ART.  1735.  If  any  of  the  parties  should  have  requested  the  trans- 
mission of  true  copies  of  the  documents,  the  chamber  shall  order,  as 


362  LAW    OF    CIVIL   PROCEDURE. 

soon  as  all  the  parties  have  stated  that  they  have  examined  the  record, 
that  it  be  delivered  to  the  justice  ponente;  and  in  view  of  his  report 
upon  said  request,  he  shall  render  the  proper  decision,  against  which 
there  shall  be  no  further  remedy. 

ART.  1736.  When  copies  of  the  documents  in  the  principal  action 
have  been  attached  to  the  record,  it  shall  be  referred  for  examination 
to  each  of  the  parties  litigant  for  a  period  not  to  exceed  eight  days. 

ART.  1737.  After  the  parties  have  examined  the  record,  the  chamber 
shall  declare  the  record  closed  and  shall  order  the  same  brought  before 
it,  making  the  proper  citations. 

ART.  1738.  The  secretary  who  is  acting  as  relator  shall  make  a 
memorandum  setting  forth  the  issues  of  fact  and  of  law  included  in 
the  abstract  and  in  the  judgment  of  the  audiencia,  in  so  far  as  they 
have  reference  to  the  grounds  for  the  annulment  of  judgment,  mak- 
ing special  mention  of  the  adjudging  part  of  the  judgment,  of  the 
reserved  votes,  should  there  be  an}^,  of  the  laws  and  doctrine  which 
are  cited  as  violated,  and  of  the  manner  in  which  it  is  alleged  said  vio- 
lation has  been  committed. 

Two  days  before  that  fixed  for  the  hearing  the  relator  shall  deliver 
a  copy  of  said  memorandum  to  each  of  the  justices  constituting  the 
chamber.  A  similar  copy  shall  be  delivered  on  the  same  day  to  each 
of  the  parties. 

ART.  1739.  Neither  before  nor  during  the  hearing  shall  the  chamber 
admit  or  allow  the  reading  of  any  document,  or  the  allegation  of  any 
facts  not  appearing  in  the  record. 

ART.  1740.  The  hearings  of  appeals  shall  begin  with  the  reading  of 
the  memorandum  made  by  the  relator,  and  thereafter  the  attorneys  for 
the  parties  shall  state  their  case  in  their  regular  order. 

ART.  1741.  The  presiding  judge  of  the  chamber  and  six  associate 
justices  must  attend  the  hearing  of  the  appeal,  one  of  the  justices 
being  the  ponente.  In  the  absence  of  the  presiding  judge  of  the  cham- 
ber, he  shall  be  replaced  by  the  presiding  judge  of  the  court,  and  if 
the  latter  should  be  absent  or  prevented  from  attending,  or  be  dis- 
qualified, the  senior  justice  of  the  chamber  shall  preside. 

ART.  1742.  The  court  shall  render  judgment  within  fifteen  days, 
counted  from  the  day  following  that  of  the  conclusion  of  the  hearing. 

ART.  1743.  If  the  court  should  be  of  the  opinion  that  the  violation 
of  law  or  of  doctrine  upon  which  the  appeal  is  based  has  been  com- 
mitted in  the  judgment,  it  shall  admit  the  appeal  and  reverse  the  judg- 
ment, ordering  the  return  of  the  deposit,  should  any  have  been  made. 

Immediately  thereafter  and  separately  the  court  shall  render  the 
judgment  which  may  be  proper  upon  the  question  at  issue  or  upon 
the  issues  involved. 

ART.  1744.  Before  rendering  either  of  the  two  judgments  mentioned 
in  the  foregoing  article,  the  chamber  may  order,  in  furtherance  of 


LAW    OF    CIVIL   PBOCEDUEE.  363 

justice,  the  transmission  of  certified  copies  drafted  on  official  paper  of 
the  files  in  the  action,  or  a  certificate  of  any  instrument,  act,  or  pro- 
ceeding which  has  taken  place  in  the  same,  and  may  even  order  the 
transmission  of  a  certified  copy,  drafted  on  official  paper,  of  the  whole 
case,  if  it  should  deem  it  absolutely  necessary  in  order  to  render  a 
proper  judgment. 

In  any  case  the  second  judgment  shall  be  rendered  without  a  new 
hearing. 

ART.  1745.  The  period  within  which  to  render  judgment,  in  the  case 
of  the  first  paragraph  of  the  foregoing  article,  shall  begin  to  be  counted 
from  the  day  following  that  of  the  receipt  by  the  chamber  of  the  pro- 
ceedings or  documents  which  may  have  been  requested. 

ART.  1746.  Judgments  disallowing  the  appeal  shall  adjudge  the 
appellant  to  pay  all  of  the  costs  and  to  lose  the  deposit,  if  any  has 
been  made,  and  shall  order  that  said  deposit  be  applied  as  prescribed 
by  law. 

SECTION  VI. — Interposition,  admission  of,  and  proceedings  in  an 
appeal  for  breach  of  form. 

ART.  1747.  An  appeal  for  annulment  of  judgment  for  breach  of 
form  shall  be  interposed  in  the  chamber  which  may  have  rendered  the 
same  within  the  ten  days  next  following  that  of  the  notification  of  said 
judgment  to  the  party  who  proposed  it. 

If  no  appeal  is  taken  before  the  expiration  of  said  period,  the  judg- 
ment shall  become  final  dejure.1 

ART.  1748.  In  the  appeal  shall  be  stated  the  case  or  cases  of  article 
1691  on  which  it  is  based,  and  the  efforts  which  may  have  been  made 
to  cure  the  defect,  or  that  it  was  impossible  to  do  so  in  accordance  with 
the  provisions  of  articles  1694  and  1695. 

ART.  1749.  With  the  appeal  shall  be  presented  the  document  proving 
that  the  deposit  prescribed  in  articles  1696  and  1697  has  been  made. 

Without  this  document  the  appeal  shall  not  be  admitted  unless  it 
has  been  ordered  that  the  appellant  be  defended  as  a  poor  person.2 

ART.  1750.  After  the  appeal  has  been  filed  the  chamber  shall  deter- 
mine: 

1.  Whether  the  judgment  is  final  or  should  be  so  considered  accord- 
ing to  article  1688. 

2.  Whether  the  appeal  had  been  interposed  within  the  legal  period. 

1  If  on  interposing  the  appeal  for  breach  of  form  in  an  audiencia  the  case  of  article 
1691  of  the  Law  of  Civil  Procedure  on  which  it  is  based  is  not  cited  at  the  proper 
time,  although  afterwards  it  is  proposed  to  cure  this  defect,  said  appeal  does  not  lie, 
and  the  chamber  which  so  considers,  according  to  article  1752  of  the  said  law,  con- 
forms thereto. — Decision  of  April  30,  1885. 

2  The  deposit  is  always  necessary  in  these  appeals,  whether  or  not  the  judgments 
rendered  in  first  or  second  instance  agree. — Decision  of  May  12,  1886. 


364  LAW    OF    CIVIL    PROCEDURE. 

3.  Whether  it  is  based  upon  any  of  the  grounds  specifically  desig- 
nated in  article  1691. 

4.  Whether  the  omission  or  fault  had  been  corrected  within  the 
proper  time,  if  said  correction  could  have  been  made  according  to  arti- 
cles 1694  and  1695. 

ART.  1751.  If  all  the  circumstances  mentioned  in  the  foregoing  arti- 
cle are  attendant,  the  chamber  shall  within  three  days  make  a  ruling 
admitting  the  appeal  and  ordering  that  the  parties  be  summoned  to 
appear  before  the  supreme  court  within  a  period  of  sixty  days,  counted 
from  the  date  of  the  entry,  showing  that  the  documents  necessary  for 
the  proceedings  in  the  appeal  have  been  ex  officio  transmitted  to  the 
said  supreme  court. 

For  this  purpose  the  chamber  shall  order  that,  after  a  succinct  report 
of  the  suit,  a  literal  transcript  be  made  of  that  part  of  the  record,  or 
issues  and  the  details  of  the  same  upon  which  the  appeal  is  based  and 
in  which  it  is  alleged  that  there  has  been  a  breach  of  form,  which 
transcript,  drawn  on  official  stamped  paper,  setting  forth  that  the 
parties  agree  as  to  the  fidelity-  of  the  copy  of  the  record,  in  so  far  as  it 
relates  to  the  appeal,  shall  be  transmitted  by  the  chamber  to  the 
supreme  court  by  the  earliest  direct  mail  after  the  day  when  the 
aforesaid  agreement  was  recorded. 

The  parties  must  state  their  agreement  to  the  statements  made  as  to 
the  literal  exactness  of  the  transcript,  or  they  must  state  what  they 
believe  should  be  added  thereto  within  the  period  of  five  days,  which 
can  not  be  extended;  and  no  appeal  shall  lie  from  any  decision  of  the 
chamber  except  a  complaint,  as  provided  for  the  denial  of  certificates 
in  articles  1T01  and  1703  et  seq.  in  so  far  as  applicable. 

The  fact  of  the  transmission  of  the  transcript  shall  be  entered  in  the 
record,  as  prescribed  in  article  1706. 

ART.  1752.  If  all  the  circumstances  mentioned  in  article  1750  are 
not  attendant,  the  adjudging  chamber  shall  rule  that  no  appeal  lies 
and  shall  order  the  delivery  of  a  certified  copy  of  the  appeal  and  of 
the  ruling  to  the  party  that  considers  himself  aggrieved,  should  he  so 
request. 

The  date  of  the  delivery  of  said  copy  shall  be  stated  at  the  foot 
thereof. 

ART.  1753.  With  the  certified  copy  referred  to  in  the  foregoing  arti- 
cle the  party  may  interpose  a  complaint  before  the  admission  chamber 
of  the  supreme  court  within  the  periods  respectively  fixed  in  article 
1701;  but  if  said  periods  should  elapse  without  the  complaint  being 
interposed,  it  shall  be  denied  and  notice  of  the  decision  thereupon 
shall  be  given  to  the  audiencia. 

ART.   1754.   If  the  party   desiring  to  complain  should   have  been 
declared  a  poor  person,  the  provisions  prescribed  in  articles  17( 
1707  et  seq.  shall  be  observed. 


LAW    OF    CIVIL    PKOCEDUBE.  365 

ART.  1755.  After  the  complaint  has  been  filed,  the  chamber  shall, 
without  further  proceedings,  render  the  proper  decision  within  a 
period  of  five  days,  against  which  there  shall  be  no  further  remedy. 

ART.  1756.  When  the  supreme  court  reverses  the  decision  denying 
the  admission  of  the  remedy  of  complaint,  it  shall  declare  the  same 
allowed  and  shall  issue  an  order  to  the  audiencia  to  forward  the  record, 
together  with  the  certificate  and  summonses  prescribed  in  article  1751. 

ART.  1757.  If  the  supreme  court  should  affirm  the  ruling  denying 
the  admission  of  the  complaint,  it  shall  communicate  the  same  to  the 
audiencia  for  the  proper  purposes. 

ART.  1758.  After  the  record  has  been  received  by  the  admission 
chamber,  and  the  appellant  has  appeared  within  the  period  of  time 
mentioned  in  the  summons,  the  chamber  shall  order  that  the  record  be 
delivered  to  the  relator  for  the  preparation  of  the  abstract. 

ART.  1759.  After  the  abstract  has  been  made  the  chamber  shall  order 
that  it  be  delivered  with  the  record  to  the  parties  for  examination  in 
their  order  to  each  for  a  period  of  ten  days. 

ART.  1760.  On  returning  the  record  the  parties  shall  state  their 
agreement  to  the  abstract,  or  shall  propose  the  additions  or  corrections 
which  they  may  consider  necessary. 

ART.  1761.  After  the  abstract  has  been  agreed  to  by  the  parties,  or 
after  such  changes  have  been  .made  therein  as  the  chamber  may  con- 
sider proper,  and  after  the  justice  ponente  has  been  heard,  the  chamber 
shall  declare  the  record  closed  and  shall  order  that  it  be  brought  before 
it  and  the  parties  in  interest  be  cited  to  appear. 

ART.  1762.  In  the  hearing  of  these  remedies  the  provisions  pre- 
scribed in  articles  1739,  1740,  and  1741  shall  be  observed  without 
change,  except  that  it  shall  begin  with  the  reading  of  the  abstract,  fol- 
lowed by  the  arguments  of  the  attorneys  of  the  parties  in  their  proper 
order. 

ART.  1763.  Judgment  shall  be  rendered  within  a  period  of  ten  days, 
counted  from  the  day  following  that  of  the  hearing. 

ART.  1764.  In  decisions  allowing  appeals  for  annulment  of  judgment 
the  deposit  shall  be  ordered  returned  to  the  appellant  and  the  record 
to  the  proper  audiencia,  in  order  that  the  record  be  placed  as  it  was 
when  the  error  was  committed,  and  that  it  hear  and  determine  or  have 
the  matter  heard  and  determined  in  accordance  with  law. 

The  proper  punishments  and  admonitions  shall  also  be  ordered, 
according  to  the  gravity  of  the  violation. 

ART.  1765.  When  it  is  declared  that  no  appeal  lies,  the  appellant 
shall  be  adjudged  to  pay  the  costs  and  to  lose  the  deposit,  should  he 
have  made  any. 


866  LAW    OF    CIVIL   PROCEDURE. 

• 

SECTION  VII. — Appeals  for  "breach  of  form  and  at  the  same  time  for 
violation  of  law  or  doctrine. 

ART.  1766.  Persons  wishing  to  interpose  an  appeal  for  annulment 
of  judgment  for  breach  of  form,  and  at  the  same  time  for  violation  of 
law  or  doctrine,  shall  prepare  the  appeal  relating  to  breach  of  form 
according  to  the  provisions  prescribed  in  articles  1747, 1748,  and  1749. 

In  a  supplementary  clause  said  parties  shall  formally  state  their 
intention  of  interposing,  in  due  time  and  in  a  proper  case,  before  the 
supreme  court  the  appeal  relative  to  the  violation  of  law  or  legal 
doctrine. 

ART.  1767.  For  the  admission,  hearing,  and  determination  of  the 
appeal  for  breach  of  form,  the  provisions  of  articles  1750  et  seq.  shall 
be  observed. 

ART.  1768.  If  the  third  chamber  of  the  supreme  court  shall  declare 
that  no  appeal  lies  for  breach  of  form,  it  shall  order,  if  the  statement 
mentioned  in  the  second  paragraph  of  article  1766  has  been  made,  that 
the  record  be  delivered  to  the  appellant  in  order  that,  within  the  pre- 
cise period  of  twenty  days,  which  shall  begin  to  be  counted  from  the 
day  following  that  of  the  notification  of  the  order,  said  petitioner  may 
present  the  appeal  for  annulment  of  judgment  for  violation  of  law  or 
of  legal  doctrine  according  to  the  provisions  of  article  1718. 

ART.  1769.  Before  delivering  the  record  to  the  appellant  for  the 
purposes  mentioned  in  the  foregoing  article,  should  the  respondent  so 
request,  the  costs  incurred  in  the  appeal  denied  shall  be  taxed  and  the 
taxation  approved,  for  which  purpose  a  separate  record  shall  be  pre- 
pared if  necessary,  and  the  deposit  for  said  appeal  shall  be  distributed 
as  provided  for  in  article  1790. 

Otherwise  said  taxation  shall  be  made  after  the  termination  of  the 
appeal  for  violation  of  law. 

ART.  1770.  The  document  proving  that  the  deposit  mentioned  in 
articles  1696  and  1697  has  been  made,  if  the  case  is  not  one  of  those 
excepted,  shall  be  attached  to  the  appeal;  otherwise  said  instrument 
shall  be  ordered  returned  to  the  party  presenting  the  same.1 

ART.  1771.  The  appeal  shall  be  admitted,  heard,  and  determined 
according  to  the  provisions  prescribed  in  articles  1720  et  seq. 

*It  is  undoubtedly  proper  and  necessary  to  deposit  1,000  pesetas  for  the  results  of 
the  appeal  when  the  judgment  rendered  in  the  second  instance  affirms,  with  costs, 
the  judgment  in  first  instance. — Decision  of  April  13, 1881. 

According  to  the  provisions  of  number  2  of  article  1727,  together  with  those  of 
articles  1726  and  1696,  the  appeal  for  annulment  of  judgment  shall  not  be  admitted 
if  the  deposit  be  not  made  in  case  the  judgments  rendered  in  first  and  second 
instance  agree;  therefore  said  deposit  should  be  made  when  the  judgment  of  the 
audiencia  affirms  that  of  the  judge  without  any  other  difference  than  that  agreed  to 
by  both  parties. — Decision  of  September  26,  1881. 


LAW    OF    CIVIL    PEOCEDUEE.  367 

SECTION  VIII. — -Appeals  from  decisions  rendered  by    amicable  com- 
pounders. 

ART.  1772.  With  the  appeal  for  annulment  of  judgment  from  deci- 
sions of  amicable  compounders  shall  be  presented: 

1.  A  certified  copy  of  the  compromise. 

2.  A  certified  copy  of  the  judgment  and  of  the  notice  thereof  to  the 
appellant. 

3.  The  document  showing  that  the  deposit  which  may  be  proper 
according  to  the  provisions  of  articles  1696  and  1697  has  been  made. 

If  the  period  fixed  in  the  compromise  should  have  been  extended 
and  the  appeal  is  based  upon  the  grounds  that  the  decision  was  not 
rendered  at  the  proper  time,  a  certified  copy  of  the  instrument  by 
which  such  extension  was  made  shall  also  be  included. 

No  other  document  shall  be  admitted. 

ART.  1773.  The  appeal  shall  also  state  the  grounds  upon  which  it  is 
based,  which  shall  be  of  those  mentioned  in  subdivision  3  of  article 
1689,  and  the  grounds  for  annulment  of  judgment  shall  be  alleged 
in  separate  and  numbered  paragraphs. 

ART.  1774.  The  period  within  which  the  appeal  may  be  interposed 
shall  be  sixty  days,  which  shall  commence  from  the  day  following 
that  of  the  notification  of  the  decision  to  the  appellant. 

ART.  1775.  The  appeal  shall  be  presented  to  the  third  chamber, 
which  shall  order  that  the  other  interested  parties  be  cited  and  sum- 
moned to  appear  and  allege  their  rights  before  said  chamber  within 
forty -five  days,  counted  from  the  date  of  the  respective  ratifications. 

ART.  1776.  In  the  hearing,  determination,  and  decision  of  these 
appeals  the  provisions  prescribed  in  Section  VI  of  this  title  shall  be 
observed. 

ART.  1777.  When  the  chamber  considers  that  the  amicable  com- 
pounders did  not  render  their  decision  at  the  time  designated  in  the 
compromise,  the  chamber  shall  annul  the  decision  and  order  the  return 
of  the  deposit  to  the  appellant. 

ART.  1778.  If  the  grounds  for  the  appeal  should  be  that  the  ami- 
cable compounders  have  determined  matters  not  submitted  to  their 
decision,  the  said  chamber  shall  annul  the  decision  only  as  to  such 
matters,  and  shall  also  order  the  return  of  the  deposit. 

SECTION  IX. — Appeals  taken  by  the  department  of  public  prosecution. 

ART.  1779.  The  department  of  public  piosecution  may  take  an  appeal 
for  annulment  of  judgment  in  actions  in  which  it  is  a  party,  subject  to 
the  rules  established  in  the  preceding  sections,  but  without  having  to 
make  any  deposit. 


368  LAW    OF    CIVIL    PROCEDURE. 

ART.  1780.  The  department  of  public  prosecution  may  also,  in  fur- 
therance of  justice,  interpose  at  any  time  an  appeal  for  annulment  of 
judgment  for  violation  of  law  or  legal  doctrine  in  actions  in  which  it 
has  not  been  a  party.  In  such  case  the  parties  to  the  action  shall  be 
summoned  and  cited  to  appear,  in  order  that,  if  they  so  desire,  they 
may  appear  before  the  supreme  court  within  a  period  of  twenty  days. 
The  decisions  rendered  in  these  appeals  shall  only  have  the  force  of 
precedents  upon  the  legal  questions  discussed  and  decided  in  the  action; 
but  they  shall  not  alter  the  final  judgment  nor  affect  the  rights  of  the 
parties. 

These  appeals  shall  be  understood  to  be  admitted  de  jure  and  shall 
be  interposed  directly  before  the  first  chamber. 

ART.  1781.  When  the  department  of  public  prosecution,  in  the  case 
of  article  1713,  interposes  an  appeal  for  annulment  of  judgment,  the 
judgment  rendered  thereupon  shall  produce  the  same  effects  with 
regard  to  the  parties  to  the  action  as  that  which  would  have  been  ren- 
dered if  the  appeal  should  have  been  interposed  on  behalf  of  an  appellant 
litigating  as  a  poor  person. 

ART.  1782.  When  the  appeal  interposed  by  the  department  of  public 
prosecution  in  an  action  in  which  it  may  have  been  a  party  is  denied,  1 
the  costs  incurred  by  the  opposite  party  shall  be  paid  from  the  funds 
retained  and  derived  from  one-half  of  the  forfeited  deposit. 

ART.  1783.  The  payment  of  costs  referred  to  in  the  foregoing  arti- 
cle shall  be  made  in  the  strict  order  of  their  priority  and  according  to 
the  amount  of  funds  on  hand. 

SECTION  X. — Provisions  common  to  all  appeals  for  annulment  of 

judgment. 

ART.  1784:.  The  audiencia  may  order  the  execution  of  the  judgment 
at  the  request  of  the  party  in  whose  favor  said  judgment  was  rendered, 
even  though  an  appeal  for  annulment  of  judgment  has  been  interposed 
and  admitted,  provided  that  said  party  furnishes  security  sufficient,  in 
the  opinion  of  said  court,  for  the  repayment  of  any  amount  he  may  have 
received  if  the  judgment  should  be  annulled. 

ART.  1785.  If  the  appellant  litigates  as  a  poor  person,  and  the 
appeal  be  denied,  he  shall  pay,  when  in  better  circumstances,  the  sum 
that  should  have  been  deposited  and  the  amount  of  the  costs  the  pay- 
ment of  which  may  have  been  adjudged  against  him. 

ART.  1786.  When  two  or  more  appeals  of  the  same  kind  are  inter- 
posed against  the  same  decision,  said  appeals  shall  be  heard  and 
determined  jointly  in  one  record,  for  which  purpose  they  shall  be 
consolidated. 

If  the  appeal  of  one  party  should  be  for  a  violation  of  law  and  that 
of  the  other  for  breach  of  form,  the  first  appeal  shall  not  be  heard 
and  determined  until  the  second  is  decided. 


LAW    OF    CIVIL   PKOCEDUKE.  369 

ART.  1787.  At  any  stage  of  the  appeal  the  appellant  may  withdraw 
therefrom,  the  provisions  of  article  1789  being  observed. 

ART.  1788.  The  ruling  permitting  withdrawal  from  the  appeal  shall 
be  communicated  to  the  audiencia  before  which  the  action  was  heard, 
and  the  abstract  or  the  record,  in  a  proper  case,  shall  be  returned  and 
notice  thereof  shall  be  given  to  the  parties  who  may  have  appeared 
before  the  supreme  court. 

ART.  1789.  When  the  withdrawal  from  an  appeal  for  violation  of 
law  or  of  legal  doctrine  should  take  place  before  said  appeal  is  admitted 
by  the  chamber,  the  entire  deposit  shall  be  .ordered  returned,  one  half 
when  the  withdrawal  takes  place  after  the  appeal  is  admitted  and  before 
a  date  is  fixed  for  hearing,  the  other  half  to  be  applied  in  the  usual 
manner. 

In  appeals  for  breach  of  form  one-half  of  the  deposit  shall  be 
returned  when  the  withdrawal  takes  place  before  the  time  set  for  the 
hearing. 

After  a  date  is  set  for  the  hearing  no  return  of  deposit  shall  be  made. 

ART.  1790.  One-half  of  the  amount  of  the  deposit,  the  forfeiture  of 
which  may  have  been  adjudged  against  the  appellant,  shall  be  delivered 
to  the  party  in  whose  favor  judgment  was  rendered  as  an  indemnity  for 
losses  and  damages,  and  the  other  half  shall  remain  in  the  public  estab- 
lishment where  said  deposit  was  made  for  the  purposes  mentioned  in 
article  1782. 

ART.  1791.  Decisions  rendered  by  the  chamber  for  hearing  appeals 
for  annulment  of  judgment  declaring  that  an  appeal  does  or  does  not 
lie  and  those  rendered  by  the  chamber  of  admission  declaring  that  an 
appeal  is  not  admissible  in  all  or  any  of  the  points  at  issue  shall  be 
published  in  the  Gaceta  of  Madrid  and  be  inserted  in  the  Coleccion 
Legislativa,  and  also  in  the  official  Gacetas  of  Havana  or  of  Porto 
Rico,  according  to  the  audiencias  before  which  the  actions  were  heard. 

The  court  may  order,  should  special  circumstances  of  its  exclusive 
consideration  be  attendant,  that  the  decision  be  not  published,  or  that 
the  publication  be  made,  suppressing  the  names  of  the  persons  inter- 
ested in  the  action  and  that  of  the  audiencia  and  court  before  which 
the  action  was  heard. 

ART.  1792.  When,  in  a  proper  case,  taxation  of  costs  has  been  made, 
a  certified  copy  of  the  judgment  or  judgments  rendered  by  the  supreme 
court  shall  be  issued  and  transmitted  to  the  proper  court  for  its  exe- 
cution, returning  the  abstract  and  filing  the  partial  transcript  of  the 
record  or  of  the  documents  which  may  have  been  transmitted  to  the 
supreme  court  for  the  hearing  and  determination  of  the  appeal. 

ART.  1793.  When  the  loss  of  the  mail  vessel  in  which  were  trans- 
mitted to  the  Peninsula  the  abstracts,  transcripts,  or  documents  indis- 
pensable for  the  interposition,  hearing,  or  determination  of  appeals  for 
annulment  of  judgment  or  complaints  before  the  supreme  court  has 
2901 24 


370  LAW    OF    CIVIL   PROCEDURE. 

been  duly  proven  by  the  proper  authorities,  the  periods  mentioned  in 
articles  1699,  1701,  1703, 1714, 1751, 1767, 1774, 1775,  and  1779  of  this 
law  shall  be  considered  as  extended,  which  periods,  both  in  the  case  of 
loss  and  in  that  of  the  detention  of  the  vessel  en  route  by  force  majeure, 
shall  commence  to  be  counted  anew  from  the  date  on  which  the  loss  or 
shipwreck  of  the  mail  vessel  has  become  publicly  known  in  the  territory 
of  the  audiencia  or  from  the  date  when  it  is  proven  that  it  continued 
its  voyage  owing  to  the  cessation  of  the  causes  which  caused  the  inter- 
ruption. 

In  case  of  the  loss  or  shipwreck  of  the  respective  mail  vessel  the 
audiencias  or  inferior  courts  in  which  judgment  was  rendered  in  the 
action  shall,  within  another  full  period,  as  provided  in  this  article, 
deliver  the  certificates,  the  certified  copies  of  the  abstract,  the  record, 
and  all  other  documents  which  may  be  proper  and  shall  comply  with 
the  provisions  of  the  law  for  the  issue  and  transmission  of  the  docu- 
ments rendered  useless  or  lost. 

The  supreme  court  shall  ex  officio  and  at  all  times  reinstate  by  cer- 
tified copies  and  in  proper  form  the  orders  of  mere  practice,  rulings, 
or  decisions  rendered  by  the  first  or  third  chamber  of  the  same  in 
appeals  for  annulment  of  judgment  when  they  may  have  been  lost  in 
consequence  of  the  loss  or  shipwreck  of  the  mail  vessels  of  the  Antilles 
and  when  the  parties  petition  said  court  to  make  good  the  absence  of 
the  decisions  originally  transmitted. 

TITLE  XXII. 

APPEALS  FOE  REVIEW.1 

SECTION  I. —  Cases  in  which  an  appeal  for  review  lies. 

ART.  1794.  The  review  of  a  final  judgment  shall  be  proper — 

1.  If,  after  judgment  has  been  rendered,  decisive2  documents  should 
be  recovered  which  were  detained  by  force  majeure  or  by  an  act  of  the 
party  in  whose  favor  judgment  was  rendered.3 

2.  When  the  judgment  was  rendered  by  virtue  of  documents  which 
at  the  time  said  judgment  was  rendered,  were  acknowledged  and 
declared  false  without  the  knowledge  of  one  of  the  parties,  or  whose 
falsity  should  be  acknowledged  or  declared  afterwards. 

3.  When  the  judgment  having  been  rendered  on  the  strength  of  the 
evidence  of  witnesses,  who  have  been  found  guilty  of  perjury,  based 
upon  declarations  which  served  as  a  basis  for  the  judgment. 

1  See  article  1251  of  the  Civil  Code. 

2 That  is,  ''having  sufficient  value  and  efficiency  to  decide  the  suit  in  a  manner 
contrary  to  or  different  from  the  judgment  rendered." — Decision  of  July  7,  1886. 

3  The  audiencia  having  refused  the  admission  of  certain  documents  and  the  order 
having  been  agreed  to,  the  appeal  can  not  be  based  on  the  fact  that  said  documents 
were  detained  by  force  majeure. — Decision  of  February  15,  1886. 


LAW    OF    CIVIL   PROCEDURE.  371 

4.  If  the  final  judgment  should  have  been  illegally  secured  through 
bribery,  violence,  or  other  fraudulent  means. 

ART.  1795.  The  appeal  for  review  shall  lie  only  after  the  judgment 
has  become  final. 

SECTION  II. — Terms  within  which  to  interpose  an  appeal  for  review. 

ART.  1796.  In  the  cases  mentioned  in  article  1794  the  period  within 
which  an  appeal  for  review  may  be  interposed  shall  be  three  months, 
counted  from  the  day  upon  which  the  new  documents  or  fraud  were 
discovered,  or  from  the  day  when  the  forgery  was  acknowledged  or 
declared. 

ART.  1797.  In  order  that  the  appeal  be  considered  as  interposed,  it 
shall  be  necessary  that  the  appellant,  should  he  not  have  been  declared 
a  poor  person,  file  with  his  appeal  for  review  a  document  showing  that 
he  has  deposited  the  sum  of  5,000  pesetas  in  the  establishment  pro- 
vided therefor. 

If  the  value  of  the  subject  of  litigation  be  less  than  30,000  pesetas 
the  deposit  shall  not  exceed  the  sixth  part  thereof. 

These  amounts  shall  be  returned  if  the  appeal  is  allowed.  Other- 
wise said  amounts  shall  be  applied  in  the  same  manner  as  are  the 
deposits  required  in  the  interposition  of  appeals  for  annulment  of 
judgment. 

ART.  1798.  In  no  case  can  an  appeal  for  review  be  interposed  after 
the  expiration  of  five  years  from  the  date  of  the  publication  of  the 
decision  appealed  from.  Should  the  appeal  be  presented  after  this 
period,  it  shall  be  summarily  denied. 

SECTION  III. — Hearing  and  determination  of  appeals  for  review. 

ART.  1799.  An  appeal  for  review  can  only  be  interposed  before  the 
third  chamber  of  the  supreme  court,  whatever  be  the  grade  of  the 
judge  or  court  before  whom  or  which  the  judgment  in  question  was 
made  final. 

After  the  presentation  of  the  appeal,  the  court  shall  order  all  the 
data  in  the  action  involved  to  be  brought  before  the  same,  and  shall 
further  order  that  all  the  parties  to  the  action,  or  their  successors  in 
interest,  be  summoned  to  appear  before  it  within  a  period  of  forty 
days  for  the  purpose  of  asserting  their  rights. 

ART.  1800.  After  the  appearance  of  the  parties  is  of  record,  or  after 
they  have  been  declared  in  default,  the  proceedings  shall  conform  to 
the  procedure  prescribed  for  the  hearing  and  determination  of  inci- 
dental issues,  and  the  opinion  of  the  representative  of  the  department 


372  LAW    OF    CIVIL    PROCEDURE. 

of  public  prosecution  as  to  whether  or  not  the  appeal  lies,  shall  always 
be  heard  before  rendering  judgment. 

ART.  1801.  Appeals  for  review  shall  not  suspend  the  execution  of 
the  final  judgments  in  question. 

Nevertheless,  the  court  may,  in  view  of  the  circumstances,  on  the 
petition  of  the  appellant,  security  having  been  furnished,  and  the 
representatives  of  the  department  of  public  prosecution  having  been 
heard,  suspend  the  proceedings  for  the  execution  of  judgments. 

The  chamber  shall  fix  the  amount  of  the  security,  which  shall  cover 
the  value  of  the  subject  of  the  litigation  and  the  losses  and  damages 
consequent  to  the  nonexecution  of  the  judgment,  in  case  said  appeal 
should  be  denied. 

ART.  1802.  If,  after  the  appeal  for  review  has  been  interposed,  and 
at  any  stage  of  the  proceedings  thereafter,  questions  should  arise  whose 
decision  appertains  to  the  criminal  tribunals,  the  proceedings  in  the 
third  chamber  of  the  supreme  court  shall  be  suspended  until  the  criminal 
action  is  decided  by  a  final  sentence. 

ART.  1803.  In  the  case  of  the  foregoing  article,  the  period  of  five 
years  referred  to  in  article  1798  shall  be  interrupted  from  the  moment 
criminal  proceedings  are  instituted  until  they  are  definitely  terminated 
by  a  final  sentence,  and  shall  commence  again  when  said  sentence  is 
pronounced. 

SECTION  IV. — Decisions  rendered  l>y  virtue  of  appeals  for  review. 

ART.  1804.  If  the  supreme  court  should  allow  the  review  requested 
on  the  ground  that  the  judgment  was  based  upon  acknowledged  forged 
or  false  documentary  or  oral  evidence,  or  because  it  was  illegally  ren- 
dered in  the  other  cases  mentioned  in  article  1794,  the  court  shall  so 
declare  and  shall  vacate  the  judgment  in  toto  or  in  part,  according  as 
to  whether  the  grounds  for  the  appeal  relate  to  the  whole  or  to  only  a 
part  thereof. 

ART.  1805.  The  supreme  court,  after  admitting  the  appeal  for 
review,  having  rendered  a  judgment  vacating  the  final  judgment  in 
toto  or  in  part,  shall  order  that  a  certified  copy  of  its  decision  be 
issued,  and  that  the  record  be  returned  to  the  court  from  which  it  pro- 
ceeded in  order  that  the  parties  may  assert  their  rights,  as  they  may 
desire,  in  the  proper  action. 

In  any  case  the  declarations  which  may  have  been  made  in  the  appeal 
for  review  shall  be  no  further  discussed  and  shall  serve  as  a  basis  for 
the  new  action. 

ART.  1806.  The  rescission  of  a  final  judgment  as  the  result  of  an 
appeal  for  review,  when  admitted,  shall  produce  all  its  legal  effects, 
except  as  to  vested  rights,  which  must  be  respected  according  to  the 


LAW    OF    CIVIL   PROCEDURE.  373 

provisions  established  in  article  42  *  of  the  mortgage  law  in  force  in  the 
islands  of  Cuba  and  Porto  Rico. 

ART.  1807.  When  the  appeal  for  review  is  denied,  the  person  inter- 
posing it  shall  be  adjudged  to  pay  all  the  costs  of  the  action  and  to 
lose  the  deposit. 

ART.  1808.  There  shall  be  no  remedy  against  the  decision  rendered 
in  the  appeal  for  review. 

ART.  1809.  The  provisions  prescribed  in  article  1793,  for  the  exten- 
sion of  time  and  other  proceedings  relating  to  appeals  for  annulment 
of  judgment,  shall  be  applicable  to  appeals  for  review. 

Article  42  of  the  mortgage  law  is  as  follows: 

"ART.  42.  Cautionary  notices  of  their  respective  interests  in  the  corresponding  pub- 
lic registries  may  be  demanded  by — 

"1.  The  person  who  enters  suit  for  the  ownership  of  the  real  property,  or  for  the 
creation,  declaration,  modification,  or  extinction  of  any  property  right. 

"2.  The  person  who,  in  accordance  with  the  law,  obtains  a  writ  of  attachment 
against  the  real  property  of  the  debtor. 

"3.  The  person  who,  in  any  trial,  obtains  a  decree  against  the  defendant,  which 
must  be  carried  out  in  the  manner  prescribed  by  title  8  of  the  Law  of  Civil  Procedure. 

' '  4.  The  person  who  enters  a  declaratory  suit  for  the  fulfillment  of  any  obligation, 
and  who,  in  accordance  with  the  laws,  obtains  a  decree  ordering  the  sequestration  or 
prohibiting  the  alienation  of  the  real  property. 

"5.  The  person  who  enters  a  suit  for  the  purpose  of  obtaining  any  of  the  decrees 
mentioned  in  No.  4  of  article  2  of  this  law. 

"6.  The  widower,  by  the  right  granted  him  by  article  838  of  the  Civil  Code. 

"7.  The  legatee  who,  according  to  the  law,  has  no  right  to  institute  testamentary 
proceedings. 

"8.  The  agricultural  creditor,  during  the  time  the  work  lasts  which  is  the  object  of 
the  loan. 

"9.  The  person  who  presents  an  instrument  to  the  registry  which  can  not  be  defi- 
nitely recorded  on  account  of  some  omission  which  may  be  repaired,  or  on  account 
of  the  incapacity  of  the  register. 

' '  10.  The  person  who  in  any  other  case  has  a  right  to  demand  a  cautionary  notice  in 
accordance  with  the  provisions  of  this  law. ' ' 


» 


BOOK  III. 

VOLUNTARY  JURISDICTION. 

PART    FIRST. 

TITLE  I. 

GENERAL  PROVISIONS. 

ART.  1810.  All  proceedings  in  which  the  intervention  of  the  judge 
is  requested  or  is  necessary,  without  there  being  actual  litigation,  or  in 
which  no  question  is  raised  between  known  and  determined  parties, 
shall  be  considered  an  act  of  voluntary  jurisdiction.1 

ART.  1811.  All  days  and  hours,  without  exception,  are  legal  for  pro- 
dings  in  acts  of  voluntary  jurisdiction. 

ART.  1812.  If  the  person  instituting  the  proceedings,  or  any  person 
having  a  legitimate  interest  therein,  should  request  that  some  other 
person  be  heard,  or  if  the  judge  should  consider  it  proper,  said  hear- 
ing shall  be  granted,  in  which  case  the  record  shall  be  subject  to  exami- 
nation in  the  clerk's  office  for  a  short  period,  which  the  judge  shall  fix 
according  to  the  circumstances  of  the  case. 

ART.  1813.  In  cases  in  which  the  hearing  is  granted  the  person  who 
instituted  the  proceedings  may  also  be  heard  in  the  manner  prescribed 
in  the  foregoing  article. 

1  The  proceedings  observed  in  actions  for  the  partition  of  foros  appertain  to  volun- 
tary jurisdiction. — Decision  of  February  13,  1871. 

Judicial  acts  in  which  is  raised  a  question  between  known  and  determined  persons 
should  not  be  considered  as  of  voluntary  jurisdiction,  notwithstanding  the  fact  that 
the  question  has  been  commenced  by  such  proceedings. — Decision  of  April  15, 1872. 

The  provisions  of  the  Law  of  Civil  Procedure  are  subordinate  to  the  wishes  of  the 
contracting  parties,  who  have  the  right  to  submit  as  many  proper  conditions  as  they 
may  desire. — Decision  of  February  7,  1878. 

The  claim  advanced  by  a  litigant  that  he  be  appointed  judicial  administrator  of 
the  property  of  an  absentee  because  he  is  the  nearest  relative  of  the  absent  person  is 
not  included  among  the  acts  of  voluntary  jurisdiction. — Decision  of  January  19,  1880. 

The  orders  issued  in  voluntary  acts  may  be  varied  and  modified  without  strict  sub- 
jection to  the  terms  established  with  respect  to  those  issued  in  the  contentious  juris- 
diction.— Decision  of  April  3,  1880. 

Questions  which  clearly  affect  known  and  determined  parties  can  not  be  considered 
as  acts  of  voluntary  jurisdiction. — Decision  of  March  14,  1888. 

375 


376  LAW    OF    CIVIL    PROCEDURE. 

ART.  1814.  The  public  prosecutor  (promotor  fiscal)  shall  also  be 
heard  when  the  petition  instituted  affects  public  interests  and  when  it 
relates  to  a  person  or  thing  whose  defense  or  protection  appertains 
to  the  public  authorities. 

The  public  prosecutor  shall  prepare  his  report  in  writing,  for  which 
purpose  the  record  of  proceedings  shall  be  delivered  to  him. 

ART.  1815.  All  documents  which  may  be  presented  and  .evidence 
offered  shall  be  admitted  without  the  necessity  of  a  request  or  any 
other  formality. 

ART.  1816.  If  opposition  to  the  request  should  be  made  by  any 
person  having  an  interest  in  the  matter,  the  proceedings  shall  be  of 
contentious  jurisdiction,  without  altering  the  situation  of  the  parties 
at  the  time  of  the  institution  of  the  proceedings,  nor  the  subject-mat- 
ter thereof,  and  it  shall  be  subject  to  the  procedure  prescribed  for  the 
proper  action,  according  to  the  amount  involved.1 

ART.  1817.  The  judge  may  change  or  modify  the  orders  he  may 
issue  without  following  the  rules  and  formalities  prescribed  for  acts 
of  contentious  jurisdiction. 

The  rulings  which  have  the  force  of  final  decisions  and  against 
which  no  remedy  shall  have  been  interposed  are  not  included  in  this 
provision.2 

ART.  1818.  The  party  who  may  have  instituted  the  proceedings  may 
appeal  both  for  review  and  for  stay  of  proceedings. 

ART.  1819.  Appeals  interposed  by  those  appearing  in  the  same  pro- 
ceedings, or  ordered  to  appear  by  the  judge,  or  who  have  appeared  to 
oppose  the  petition  which  gave  rise  to  the  institution  of  the  proceed- 
ings, shall  be  admitted  for  review  only. 

ART.  1820.  The  procedure  for  the  appeals  referred  to  in  the  fore- 
going articles  shall  conform  to  that  prescribed  for  incidental  issues. 

ART.  1821.  An  appeal  for  annulment  of  judgment  lies  from  the  deci- 
sions rendered  by  the  audiencias. 

ART.  1822.  The  records  of  proceedings  in  acts  of  voluntary  jurisdic- 
tion shall  not  be  subject  to  consolidation  with  any  action  of  contentious 
jurisdiction. 

ART.  1823.  The  provisions  contained  in  the  foregoing  articles  shall 
be  applicable  to  acts  of  voluntary  jurisdiction  specially  mentioned  in 
the  following  titles,  in  so  far  as  not  in  contravention  of  the  special 
prescriptions  thereon. 

1  From  the  moment  in  which  there  is  opposition  in  acts  of  voluntary  jurisdiction, 
they  become  contentions  and  subject  to  the  procedure  prescribed  for  the  proper 
action. — Decision  of  February  20,  1872. 

If  to  the  petition  of  a  husband  that  his  wife  return  to  his  domicile  and  that  his 
daughter  be  delivered  to  him,  she  should  make  opposition,  this  would  make  the 
matter  a  question  of  contentious  jurisdiction. — Decision  of  December  14,  1887. 

2  This  does  not  indicate  that  said  rulings  are  final,  and  that  against  them  the 
proper  action  can  not  be  brought.— Decision  of  January  llt  1887. 


LAW    OF    CIVIL    PEOCEDUEE.  377 

TITLE  II. 

ADOPTION  AND  ABROGATION.1 

ART.  1824.  In  cases  in  which,  in  accordance  with  law,  judicial  con- 
sent is  necessary  for  adoption,  the  adopter  shall  request  said  permis- 
sion of  the  judge  of  first  instance  of  competent  jurisdiction,  in  a 
written  petition,  in  which  he  shall  state  the  reasons  for  the  adoption 
and  that  the  legal  requisites  are  attendant. 

The  baptismal  certificate  or  the  certificates  of  birth  of  the  adopter 
and  of  the  adopted  shall  be  attached  to  the  petition,  as  well  as  any 
other  documents  which  may  be  pertinent,  and  evidence  shall  also  be 
furnished  of  all  other  matters  which  can  not  be  proven  by  documentary 
evidence,  as  well  as  of  the  benefit  of  the  adoption  for  the  person  to  be 
adopted. 

ART.  1825.  The  father  or  mother  who  may  have  the  person  to  be 
adopted  under  their  power,  may  subscribe  the  petition,  in  which  case 
they  shall  ratify  the  same  before  the  judge. 

Should  they  not  have  subscribed  it,  they  must  give  their  consent  in 
the  presence  of  the  judge,  which  shall  be  entered  upon  the  record. 

ART.  1826.  When  the  person  to  be  adopted  is  over  seven  years  of 
age  the  judge  shall  have  him  appear  in  order  to  ascertain  his  wishes, 
which  shall  also  be  entered  upon  the  record  if  he  agrees  or  does  not 
object  thereto. 

ART.  1827.  Should  the  person  to  be  adopted  not  object,  and  if  the 
father  or  the  mother,  in  a  proper  case,  consents  thereto,  the  judge  shall 
admit  the  evidence  offered,  citing  the  public  prosecutor  to  appear  at 
the  proceeding. 

This  evidence  must  be  given  by  three  witnesses  at  least,  who  shall 
be  vouched  for  by  the  court  clerk,  and  if  the  court  clerk  should  not 
be  acquainted  with  them  they  shall  then  be  vouched  for  by  two  other 
witnesses. 

ART.  1828.  After  the  evidence  has  been  furnished  the  record  of  pro- 
ceedings shall  be  referred  to  the  public  prosecutor  for  a  period  of  six 
days,  in  order  that  he  may  give  his  opinion  as  to  whether  or  not  the 
legal  requirements  for  adoption  have  been  complied  with  or  if  he  con- 
siders it  necessary  to  take  further  evidence,  or  that  some  defect  in  the 
procedure  be  cured. 

ART.  1829.  After  the  public  prosecutor  has  returned  the  record  of 
proceedings,  and  after  the  defects  or  omissions  he  may  have  noted 
have  been  cured,  or  supplied,  in  a  proper  case,  the  judge  shall  order  the 
record  to  be  brought  before  him,  and  within  five  days  he  shall  issue  a 
ruling  deciding  whatever  he  may  deem  proper. 

1  See  the  provisions  of  the  Civil  Code,  articles  173  et  seq.,  and  the  eleventh  transi- 
tory provision. 


378  LAW    OF    CIVIL    PROCEDURE. 

ART.  1830.  If  the  judge  should  consider  that  the  adoption  is  proper 
according  to  law,  and  that  it  would  be  of  benefit  to  the  person  to  be 
adopted,  he  shall  grant  the  authority  and  judicial  permission  therefor, 
in  order  that  the  adoption  may  take  place,  arid  shall  order  that  the 
proper  certificate  be  delivered  to  the  persons  interested  so  that  the 
proper  instrument  may  be  drafted. 

The  adopter,  the  father  or  mother  of  the  person  to  be  adopted,  and 
the  latter,  if  over  fourteen  years  of  age,  shall  be  parties  to  the  said 
instrument. 

ART.  1831.  In  cases  of  adoption  in  which  the  grant  of  the  King  is 
necessary,  and  in  cases  of  arrogation,  the  petition  shall  be  presented 
to  the  presiding  judge  of  the  audiencia,  together  with  the  documents 
mentioned  in  the  second  paragraph  of  article  1824,  and  the  proceedings 
shall  be  instituted  in  the  manner  prescribed  in  title  8  of  this  book  for 
proceedings  to  dispense  with  the  law. 

This  proceeding,  after  having  been  passed  upon  by  the  chamber  of 
administration  (sola  de  gobierno),  shall  be  forwarded  to  the  colonial 
department  for  its  decision. 


TITLE  III. 

DESIGNATION  OF  TUTORS  AND  CURATORS  AND  THEIR  APPOINTMENT.1 

SECTION  I. — Designation  of  tutors. 


ART.  1832.  After  the  designation  of  a  tutor  is  shown  to  have  been 
made  in  a  testamentary  disposition  by  the  father  or  mother  of  the 
minor,  the  judge  shall  appoint  such  person  to  said  office,  without  bond, 
if  he  should  have  been  relieved  from  furnishing  any  in  the  designation. 

ART.  1833.  The  person  designated  as  tutor  by  any  one  who  may  have 
instituted  the  minor  an  heir  or  left  him  any  important  bequest  or 
legacy  shall  also  be  appointed,  but  the  exemption  from  furnishing 
bond,  in  a  proper  case,  shall  be  understood  only  with  regard  to  the 
property  comprising  said  inheritance  or  legacy.2 

ART.  1834.  Notwithstanding  the  provisions  of  the  two  preceding 
articles,  if  there  be  well-founded  reasons,  which  the  judge  shall  take 
into  consideration  in  view  of  the  special  circumstances  which  may 
occur,  he  may  require  that  the  tutor  or  curator  designated  by  the 
father  or  mother,  or  by  any  other  person  which  has  left  the  minor  a 
bequest  or  legacy  of  importance,  be  required  to  furnish  a  bond.3 

1  The  entire  contents  of  this  title  have  been  greatly  modified  by  the  civil  code. 
See  articles  199  d  seq.  and  transitory  provisions  8,  9,  and  10  of  said  code. 

2  See  articles  206,  207,  209,  210,  234,  252  to  260,  and  261  of  the  civil  code. 

8  At  the  present  time  the  determination  of  the  bond,  as  well  as  all  the  duties  which 
this  law  assigned  to  the  judicial  authorities,  pertain  to  the  family  council.  See  arti- 
cles 252  to  260  of  the  civil  code. 


LAW    OF    CIVIL    PROCEDURE.  379 

ART.  1835.  Should  the  father,  mother,  or  other  person  who  has 
instituted  the  minor  an  heir  or  left  him  a  bequest  of  importance  not 
have  designated  a  tutor,  the  judge  shall  select  therefor  the  relative 
who  is  to  fill  said  office  in  accordance  to  law.1 

ART.  1836.  The  appointment  to  the  office  of  tutor  shall  be  made 
after  the  acceptance  thereof  by  the  person  designated  and  after  the 
bond  has  been  furnished,  in  a  proper  case. 

ART.  1837.  In  the  absence  of  a  relative  for  such  designation,  or  if 
such  relative  does  not  possess  the  conditions  required  by  law,  and 
which  shall  be  stated  in  the  record,  the  judge  shall  appoint  to  said 
office  some  person  whom  he  may  deem  worthy  of  confidence.2 

ART.  1838.  If  there  should  be  any  opposition  to  the  designation  it 
shall  be  discussed  and  decided  in  accordance  with  the  procedure  for 
incidental  issues  between  the  person  making  the  opposition  and  the 
tutor  designated,  the  public  prosecutor  (promotor  fiscal)  representing 
the  interests  of  the  minor. 

During  the  course  of  said  proceedings  the  custody  of  the  minor 
and  the  administration  of  his  estate  shall  be  vested  in  the  tutor  desig- 
nated, under  such  security  as  the  judge  may  consider  sufficient. 

ART.  1839.  If  the  tutor  designated  should  refuse  to  accept  the 
office  the  public  prosecutor  (promotor  fiscal)  shall  be  heard,  and  if  he 
should  agree  thereto  the  judge  shall  designate  another  tutor. 

If  the  public  prosecutor  should  not  agree  to  the  refusal,  the  opposi- 
tion shall  be  heard  and  determined  according  to  the  procedure  estab- 
lished for  incidental  issues,  the  provisions  contained  in  the  second 
paragraph  of  the  foregoing  article  being  observed. 

SECTION  JT. — Appointment  of  curator's  ad  bona.s 

ART.  1840.  After  the  designation  of  a  curator  is  shown  to  have 
been  made  in  a  testamentary  disposition  by  the  father  or  the  mother  of 
the  minor,  or  by  any  other  person  who  may  have  instituted  the  latter 
his  heir  or  left  him  a  bequest  of  importance,  the  judge  shall  make  the 
appointment. 

In  the  same  order  making  the  appointment  the  judge  shall  decree 
that  bond  be  furnished  or  the  exemption  therefrom,  as  the  case  may 
be,  in  the  manner  prescribed  for  tutors  in  articles  1832, 1833,  and  1834. 

ART.  1841.  The  minor  may  object  to  the  appointment  of  a  tutor 
designated  by  a  person  who,  not  being  his  father  or  mother,  shall 
have  instituted  him  an  heir  or  have  left  him  a  bequest  of  importance. 

Should  he  make  said  objection,  the  judge  shall  hear  the  public  prose- 
cutor (promotor  fiscal)  in  the  manner  prescribed  in  article  1814,  and  if 

1  See  articles  211  and  231  of  the  Civil  Code. 

2  See  articles  204  and  231  of  the  Civil  Code. 
8  See  article  199  of  the  Civil  Code. 


380  LAW    OF    CIVIL    PROCEDURE. 

he  should  find  that  there  are  grounds  for  the  objection  of  the  minor, 
he  shall  deny  the  appointment  to  the  person  designated  and  shall 
require  the  minor  to  designate  another,  admonishing  him  that  other- 
wise one  will  be  appointed  ex  officio  to  the  property  comprised  in  the 
inheritance  or  legacy. 

ART.  1842.  If  any  question  should  be  raised  with  regard  to  any  of 
the  particulars  indicated  in  the  foregoing  articles,  it  shall  be  heard 
and  determined  in  accordance  with  the  procedure  prescribed  for  inci- 
dental issues,  the  minor  being  represented,  in  the  first  place,  by  the 
tutor,  should  he  have  had  one,  otherwise  by  his  curator  ad  litem,  and 
in  default  of  both,  by  the  public  prosecutor  (promoter  fiscal)  of  the 
court. 

ART.  1843.  Should  no  curator  have  been  designated  by  the  father, 
mother,  or  person  who  instituted  the  minor  as  his  heir  or  who  left  him 
a  bequest  of  importance,  the  minor  shall  have  the  right  to  make  said 
designation. 

ART.  1844.  The  designation  of  a  curator  must  be  made  before  the 
judge  at  the  instance  of  the  minor. 

ART.  1845.  If  the  person  appointed  should  not  possess  the  qualifica- 
tions necessary  for  the  discharge  of  the  duties  of  the  office,  the  judge 
may  deny  the  appointment,  requesting  the  minor  to  designate  another 
in  his  stead. 

SECTION  III. — Appointment  of  curators  for  incapacitated  persons.1 

ART.  1846.  A  judge  of  competent  jurisdiction  who  has  information 
that  any  person  has  been  declared,  by  a  final  decision,  incapacitated  to 
administer  his  property,  shall  appoint  a  curator  to  such  person,  the 
record  of  the  proceedings  being  begun  with  a  certified  copy  of  said 
final  decision.2 

ART.  184T.  When  the  incapacity  by  reason  of  insanity  should  not 
have  been  declared  in  a  final  decision,  it  shall  summarily  be  deter- 
mined in  a  preliminary  proceeding,  and  a  provisional  curator  shall  be 
appointed,  the  parties  reserving  the  rights  they  may  be  entitled  to 
assert  in  the  proper  action.3 

ART.  1848.  The  appointment  of  curators  for  incapacitated  persons 
must  be  given  to  the  persons  hereinafter  named,  in  their  regular  order, 
provided  they  possess  the  qualifications  necessary  to  perform  the 
duties  of  said  office:  father,  wife,  children,  mother,  grandparents,  and 
brothers  and  sisters  of  the  incapacitated  person. 

1The  provisions  contained  in  the  articles  of  this  section  have  been  modified  by 
articles  220,  231  and  232  of  the  Civil  Code. 

2  See  articles  228  to  230  of  the  Civil  Code. 

3Article  1244  of  the  law  of  1855  required  full  proof  of  the  incapacity,  it  having  been 
declared  that  a  professional  examination  was  not  an  essential  requisite. — Decision  of 
December  28, 1868. 


LAW    OF    CIVIL    PROCEDURE.  381 

ART.  1849.  Should  there  be  several  children  or  brothers  and  sisters, 
the  males  shall  have  preference  over  the  females,  and  the  oldest  over 
the  youngest. 

Should  there  be  both  paternal  and  maternal  grandparents,  the  males 
shall  also  have  preference  over  the  females;  and  if  they  should  be  of 
the  same  sex,  the  paternal  grandparents  shall  have  preference  over  the 
maternal. 

ART.  1850.  Should  there  not  be  any  of  the  persons  mentioned  in  the 
foregoing  article,  or  should  they  not  be  qualified  for  the  curatorship, 
the  judge  may  appoint  any  person  possessing  the  proper  qualifications, 
preferring,  if  qualified,  a  relative  or  friend  of  the  incapacitated  person 
or  of  his  parents.1 

SECTION  IV. — Designation  of  curators  ad  litem.2 

ART.  1851.  Persons  under  25  years  of  age  still  under  the  parental 
authority,  shall  be  represented  in  court  by  the  persons  having  them 
under  their  authority. 

Persons  not  under  parental  authority,  shall  be  so  represented  by 
their  tutors  and  curators. 

ART.  1852.  If  the  parents  of  the  minor  subject  to  parental  authority, 
or  his  tutors  or  curators,  are  disqualified  to  represent  him  in  court  in 
accordance  to  law,  a  curator  ad  litem  shall  be  appointed  for  him. 

The  same  shall  be  done  if  the  minor  or  incapacitated  person  should 
not  have  designated  a  tutor  or  curator. 

ART.  1853.  It  shall  be  the  duty  of  the  judge  to  appoint  a  curator  ad 
litem  for  persons  under  fourteen  and  twelve  years  of  age,  according  to 
their  sex,  and  for  incapacitated  persons. 

ART.  1854.  The  judge  shall  appoint  as  such  guardian  ad  litem  the 
nearest  relative  of  the  minor,  should  there  be  any;  otherwise,  an  inti- 
mate friend  of  said  minor  or  of  his  parents;  and  if  there  be  none  or  if 
they  do  not  possess  the  legal  qualifications  necessary,  a  properly  quali- 
fied person  whom  he  may  deem  worthy  of  confidence. 

ART.  1855.  Persons  under  twenty-five  years  of  age,  and  over  four- 
teen and  twelve,  according  to  their  respective  sex,  may  themselves 
designate  any  person  they  may  wish  as  guardian  ad  litem,  provided 
they  have  the  legal  qualifications  necessary  to  represent  them  in  court. 
This  designation  shall  be  made  before  the  judge. 

ART.  1856.  The  judge  may  refuse  to  make  the  appointment  if  the 
person  designated  by  the  minor  does  not  have  the  necessary  legal 

JSee  article  204  of  the  CivilCode. 

2  The  Civil  Code  does  not  speak  of  curators  ad  litem  because  in  the  cases  of  incom- 
patibility between  the  interests  of  the  father  and  the  minor,  the  latter  is  represented 
by  the  next  friend  referred  to  in  article  165  of  the  Civil  Code,  and  in  cases  of  similar 
incompatibility  between  the  interests  of  the  minor  and  of  his  tutor,  the  latter  is  sub- 
stituted by  the  protutor  (Art.  236). 


382  LAW    OF    CIVIL   PROCEDURE. 

qualifications,  in  which  case  he  shall  request  the  minor  to  make  desig- 
nation of  another  person  having  said  qualifications,  with  the  warning 
that  if  he  does  not  do  so,  a  guardian  ad  litem  will  be  appointed  ex  officio. 

ART.  1857.  If  any  question  should  be  raised  over  the  appointment, 
it  shall  be  heard  and  determined  in  accordance  with  the  procedure  pre- 
scribed for  incidental  issues,  the  minor  being  represented  by  the  public 
prosecutor  (promotor  fiscal). 

ART.  1858.  After  a  curator  ad  litem  has  been  designated,  he  shall  be 
appointed  in  the  ordinary  manner. 

ART.  1859.  Curatorship  ad  litem  shall  cease  as  soon  as  a  tutor  or 
curator  ad  ~bona  has  been  appointed  for  the  minor  or  incapacitated 
person  or  a  special  curator  (ejemplar),  or  the  incapacity  has  disappeared. 

SECTION  V. — Appointment  to  the  office  of  tutor  or  curator. 

ART.  1860.  After  a  tutor  or  curator  ad  ~bona  or  a  special  curator  has 
been  appointed  and  if  the  amount  of  the  estate  of  the  minor  or  inca- 
pacitated person  be  known,  the  judge  shall  issue  an  order  requiring 
that  the  tutor  or  curator  designated  be  heard,  as  well  as  the  public 
prosecutor  (promotor  fiscal),  as  to  whether  the  tutor  or  curator  shall 
apply  the  profits  of  the  estate  to  the  maintenance  of  the  ward,  or 
whether  a  determined  amount  is  to  be  fixed  for  said  maintenance. 

If  the  estate  of  the  minor  or  incapacitated  person  should  not  be 
known,  it  shall  be  sufficient,  for  the  purposes  of  this  article,  that  the 
tutor  or  curator  designated  present  a  simple  inventory  of  the  estate  of 
the  minor,  prepared  with  the  assistance  of  two  of  the  nearest  relatives 
of  said  minor,  one  from  each  line  of  relationship,  and  should  there 
not  be  any,  two  resident  property  owners  designated  b}^  the  judge,  the 
promotor  fiscal  being  also  cited  to  attend  said  inventory. 

ART.  1861.  In  view  of  the  statements  of  the  curator  and  the  public 
prosecutor,  the  judge  shall  render  the  proper  decision,  fixing  the 
amount  of  the  allowance  for  maintenance  if  he  approves  this  means, 
and  determining,  futhermore,  in  such  case,  the  percentage  to  be 
allowed  the  tutor  or  curator  for  the  performance  of  his  duties.1 

ART.  1862.  The  decision  referred  to  in  the  foregoing  article  shall  be 
executed  without  prejudice  to  an  appeal,  which  shall  be  allowed  for 
review  only. 

ART.  1863.  The  provisions  contained  in  the  foregoing  articles  shall 
be  applicable  only  to  cases  in  which  the  person  who  instituted  the 
minor  his  heir  has  not  provided  otherwise. 

ART.  1864.  If  the  tutor  or  curator  designated  should  not  have  beei 
relieved  from  the  obligation  to  furnish  bond,  he  shall  be  required 

1 A  ruling  fixing  the  allowance  for  maintenance  has  not  the  character  of  a  res 
judicata,  and  may  be  modified  in  the  proper  ordinary  action,  if  the  amount  of  the 
estate  of  the  incapacitated  person  should  change. — Decision  of  January  11,  1887. 


. 


LAW    OF    CIVIL   PROCEDURE.  383 


furnish  such  bond  as  the  judge  may  consider  necessary  to  secure  the 
value  of  the  personal  property  and  the  rents  and  profits  on  the  real 
estate  which  constitute  the  estate  of  the  minor  or  incapacitated  person.1 

ART.  1865.  All  kinds  of  bonds  shall  be  admissible,  with  the  excep- 
ion  of  personal  bonds. 

ART.  1866.  The  bond  shall  be  approved  after  hearing  the  public 
prosecutor  (promotor  fiscal). 

The  order  (auto)  of  approval  shall  require,  as  the  case  may  be: 

1.  The  inscription  in  the  registry  of  property  of  the  real  estate 
embraced  in  the  bond,  the  provisions  of  the  mortgage  law  and  its 
regulations  being  observed. 

2.  The  deposit  of  the  bonds  or  securities  of  which  the  bond  consists. 

3.  The  execution  of  anything  else  which  the  judge  may  consider 
advisable  to  make  the  bond  valid  and  to  preserve  the  property  of  the 
minor  or  incapacitated  person. 

ART.  1867.  After  all  the  proceedings  ordered  have  been  complied 
with,  and  after  the  tutor  or  curator  has  executed  an  apud  acta  binding 
himself  to  perform  the  duties  of  his  office  in  accordance  with  law,  the 
judge  shall  make  the  appointment. 

In  the  order  of  appointment  he  shall  grant  the  tutor  or  curator  the 
power  to  represent  the  minor  or  incapacitated  person  in  accordance 
with  law,  and  to  take  care  of  his  person  and  property,  and  shall  order 
that  the  proper  transcript  of  the  order  of  appointment  be  entered 
upon  the  register  of  the  court. 

ART.  1868.  If  the  bond  should  at  any  time  become  insufficient,  the 
judge  may,  ex  officio  or  at  the  instance  of  any  person,  order  that  it  be 
increased  to  such  amount  as,  in  his  judgment,  should  be  necessary  to 
secure  the  results  of  the  administration,  the  formalities  prescribed  in 
the  foregoing  articles  being  observed. 

ART.  1869.  After  the  appointment  has  been  made  the  estate  of  the 
minor  or  incapacitated  person  shall  be  turned  over  to  the  tutor  or  cura- 
tor according  to  inventory,  which  shall  be  attached  to  the  record  of  pro- 
ceedings, if  it  should  not  be  included  therein,  at  the  foot  of  which  the 
receipt  of  the  said  tutor  or  curator  shall  appear. 

A  similar  delivery  shall  be  made,  and  with  the  same  formality,  of 
the  titles  and  documents  relating  to  said  property. 

ART.  1870.  Curators  ad  litem,  designated  in  accordance  with  the  pro- 
visions of  this  law,  shall  be  appointed  after  the  execution  of  the  obli- 
gation prescribed  in  article  1867,  without  being  required  to  give  bond. 

ART.  1871.  If  the  tutor  or  curator  should  so  request,  the  tenants, 
lessees,  and  other  proper  persons  shall  be  required  to  acknowledge 
him  as  such  tutor  or  curator. 

1  The  provisions  of  articles  252  et  seq.  of  the  Civil  Code  are  to  be  considered  in 
this  connection. 


384  LAW    OF    CIVIL    PROCEDURE. 

SECTION  VI. — Provisions  common  to  the  foregoing  sections. 

ART.  1872.  Any  questions  arising  over  the  provisions  contained  in 
this  title  and  which  are  to  be  decided  by  litigation,  as  prescribed 
therein,  shall  be  heard  and  determined  in  accordance  with  the  proce- 
dure established  for  incidental  issues. 

ART.  1873.  If  the  income  from  the  estate  of  the  minor  should  not 
exceed  the  amount  fixed  in  article  15  of  this  law,  in  order  to  be  entitled 
to  obtain  the  gratuitous  administration  of  justice,  the  proceedings 
shall  be  entered  upon  official  stamped  paper  and  no  fees  charged. 

For  this  purpose  the  pauper  application  shall  first  be  determined, 
without  prejudice,  if  the  judge  considers  it  necessary,  to  take  any 
urgent  measures,  doing  so  at  once  ex  officio,  or  at  the  instance  of  the 
representative  of  the  minor,  or  of  the  public  prosecutor  (promotor 
fiscal). 

ART.  1874.  In  courts  of  first  instance  there  shall  be  a  register  in 
which  transcripts  shall  be  entered  of  all  the  appointments  of  tutors  or 
curators  which  may  be  made. 

ART.  1875.  Within  the  first  eight  days  of  every  year  the  judges 
shall  examine  said  register,  shall  demand  the  reports  they  may  con- 
sider necessary,  and  shall  order,  as  the  case  may  be — 1 

1.  The  substitution  of  tutors  who  may  have  died. 

2.  That  tutors  or  curators  who  are  obliged  to  do  so  render  accounts. 

3.  The  deposit,  in  the  proper  establishment,  of  the  surplus  remain- 
ing from  the  rents  and  profits  of  the  estates  of  minors  or  incapacitated 
persons. 

4.  The  profitable  investment  of   existing  funds  not  subject  to  a 
special  application. 

5.  The  other  orders  which  may  be  necessary  to  remedy  or  prevent 
abuses  in  the  management  of  the  tutorship  or  curatorship.2 

ART.  1876.  The  public  prosecutor  (promotor  fiscal}  shall  always  be 
heard  with  regard  to  the  accounts  rendered  by  tutors  or  curators  in 
the  performance  of  their  duties. 

ART.  1877.  If  no  objection  be. made  to  the  account  by  the  minor  or 
by  the  public  prosecutor,  it  shall  be  approved  without  prejudice  to  the 
right  which  the  laws  grant  the  minor  to  claim  against  any  injury 
caused  thereby. 

ART.  1878. 3  Tutors  or  curators,  whether  ad  fiona  or  ad  litem,  can 
not  be  removed  by  an  act  of  voluntary  jurisdiction,  even  though  it  be 
at  the  request  of  the  minors. 

1  These  articles  have  been  supplemented  by  articles  288  to  292  of  the  Civil  Code, 
which  have  created  a  register  of  guardians. 

2  All  the  functions  of  the  inspection  and  surveillance  of  tutors  formerly  in  charge 
of  the  judicial  authorities  appertain  at  present  to  the  protutor  and  family  council. 

3  This  article  has  been  essentially  modified  by  articles  239  and  240  of  the  Civil  Code, 
which  authorize  the  family  council  to  order  the  removal. 


LAW    OF    CIVIL    PROCEDURE.  385 

For  the  purpose  of  ordering  their  removal  after  the  appointment  is 
made,  the  matter  must  be  heard  and  decided  in  an  action. 


TITLE  IV. 

CUSTODY  OF  PERSONS. 

ART.  1879.  The  custody  of  the  following  persons  may  be  ordered: 

1.  A  married  woman  who  proposes  to  institute  or  has  instituted  suit 
for  divorce,  or  who  enters  a  complaint  of  concubinage  against  her  hus- 
band, or  who  institutes  an  action  for  annulment  of  marriage.1 

2.  A  married  woman  against  whom  her  husband  has  instituted  suit 
for  divorce,  or  a  complaint  of  adultery,  or  an  action  for  the  annulment 
of  marriage. 

3.  A  single  woman  who,  having  reached  the  age  of  twenty  years, 
proposes  to  contract  marriage  against  the  advice  of  her  parents  or 
grandparents.2 

4.  Children  under  parental  authority,  pupils  or  incapacitated  per- 
sons who  may  be  ill  treated  by  their  parents,  curators,  or  tutors,  or 

§ho  are  compelled  by  them  to  perform  acts  condemned  by  law. 
5.  Orphans  who  may  have  been  abandoned  by  reason  of  the  death, 
Indefinite  absence  in  an  unknown  country,  or  the  legal  or  physical 
disability  of  the  persons  in  charge  of  them. 

ART.  1880.  In  order  to  decree  the  custody  in  the  case  of  the  first 
paragraph  of  the  foregoing  article,  a  written  petition  of  the  wife  or 
of  another  person  at  her  request  must  be  presented. 

ART.  1881.  After  the  petition  has  been  presented,  the  judge  shall 
call  at  the  husband's  house  accompanied  by  the  court  clerk,  and 
without  the  presence  of  the  husband  he  shall  have  the  woman  appear 
before  him  and  state  whether  or  not  she  ratifies  the  petition  made  for 
her  custody. 

Should  the  woman  not  be  found  in  the  husband's  house,  the  said 
proceedings  and  the  others  referred  to  in  the  following  articles,  shall 
be  had  at  the  house  where  she  may  be  found,  first  citing  the  husband 
to  appear  thereat  on  the  day  and  hour  fixed,  with  the  admonition  that 
without  further  notice  the  said  proceedings  shall  be  had  even  should 
he  not  appear. 

JSee  article  68,  subdivision  2,  of  the  Civil  Code.  When  the  temporary  custody  of  a 
married  woman  is  in  question,  as  the  orders  relating  thereto  are  not  final,  an  appeal 
for  annulment  of  judgment  does  not  lie. — Decision  of  June  28,  1865. 

2  According  to  the  law  of  June  20,  1862,  sons  under  twenty-three  years  of  age  and 
daughters  under  twenty  could  not  contract  marriage  under  any  pretext  whatsoever, 
nor  in  any  case  without  the  paternal  consent  (or  of  the  mother,  or  the  grandparents, 
the  curator,  or  the  judge,  in  a  proper  case).  The  Civil  Code  prohibits  the  marriage 
of  a  minor  who  has  not  obtained  permission  (article  45,  subdivision  1) . 

2901 25 


386  LAW    OF    CIVIL    PROCEDURE. 

Should  the  husband  not  be  present  the  judge  shall  decide  what  may 
be  proper. 

ART.  1882.  If  the  petitioner  ratifies  her  request,  the  judge  shall 
endeavor  to  have  the  husband  and  wife  agree  upon  the  person  to  act 
as  custodian. 

ART.  1883.  Should  they  not  agree,  or  if  the  husband  should  not 
have  attended,  the  judge  shall  select  as  custodian  the  person  whom 
he  believes  to  be  most  proper,  either  from  among  those  designated  by 
one  of  the  parties,  if  he  considers  the  objection  made  by  the  other 
unfounded,  or  any  other  person  whom  he  deems  worthy  of  confidence. 

ART.  1884.  He  shall  also  order  that  the  bed  and  clothing  in  daily 
use  by  the  wife  be  immediately  delivered  to  her,  the  proper  inventory 
being  made. 

ART.  1885.  Should  any  question  arise  as  to  the  clothing  which  should 
be  delivered  to  her,  the  judge  shall,  without  further  remedy  and  taking 
into  consideration  the  circumstances  of  the  persons,  decide  what  shall 
be  considered  as  of  daily  use  and  to  be  delivered  to  her. 

ART.  1886.  If  there  be  any  children  of  the  marriage,  the  judge  shall 
order  that  those  under  three  years  of  age  remain  in  the  custody  of  the 
mother,  and  that  those  over  this  age  remain  with  the  father  until  a 
decision  is  rendered  in  the  proper  action. 

ART.  188T.  After  the  provisions  prescribed  in  the  foregoing  articles 
have  been  complied  with,  the  judge  shall  vest  the  custody  with  the 
proper  formalities. 

ART.  1888.  There  shall  be  delivered  to  the  custodian,  for  his  own 
security,  an  authenticated  copy  of  the  order  appointing  him  and  of 
that  vesting  the  custody. 

ART.  1889.  After  the  custody  has  been  effected,  the  judge  shall  issue 
an  order  enjoining  the  husband  from  molesting  his  wife,  or  the  custo- 
dian, with  the  admonition  that  otherwise  he  shall  be  proceeded  against 
as  circumstances  may  determine,  and  with  the  admonition  to  the  wife 
that  if  she  does  not  prove  that  she  has  instituted  an  action  for  divorce 
or  for  annulment  of  marriage  or  for  concubinage  within  one  month,  the 
custody  shall  be  dissolved  and  she  shall  be  returned  to  the  house  of 
her  husband. 

ART.  1890.  The  period  of  one  month  shall  be  increased  one  day  for 
every  thirty  kilometers  of  distance  between  the  town  in  which  the 
custody  was  effected  and  the  residence  of  the  ecclesiastical  judge  or 
judge  of  first  instance  who  is  to  take  cognizance  of  the  main  action. 

ART.  1891.  If  the  woman  who  requests  custody  should  reside  in  a 
place  other  than  that  in  which  the  court  is  situate,  the  judge  may  com- 
mission the  municipal  judge  to  effect  the  custody,  without  prejudice  to 
the  right  of  the  said  judge  to  do  it  himself  should  he  deem  it  necessary. 

ART.  1892.  The  period  fixed  for  the  custody  may  be  extended  if  it 


LAW    OF    CIVIL    PKOCEDUKE.  387 

be  proven  that  owing  to  a  cause  not  within  the  control  of  the  woman  it 
has  been  impossible  to  institute  or  file  the  proper  action  or  complaint. 

ART.  1893.  If  it  be  not  satisfactorily  shown  that  the  action  or  com- 
plaint has  been  instituted  or  filed  within  the  period  fixed,  the  judge 
shall  dissolve  the  custody,  ordering  that  the  wife  be  returned  to  the 
house  of  her  husband.1 

ART.  1894.  As  soon  as  the  wife  has  shown  that  the  claim  or  complaint 
has  been  admitted,  the  custody  shall  be  ratified  unless  she  requests  that 
it  be  vested  in  the  person  she  may  designate.2 

ART.  1895.  An  appeal  lies  from  such  ruling.  The  appeal  shall  be  ad- 
admitted  for  review  and  a  stay  of  proceedings  to  the  wife,  who  requested 
custody,  and  only  for  review  to  her  husband. 

ART.  1896.  All  allegations  that  may  be  presented  by  the  wife,  hus- 
band, or  custodian  with  reference  to  a  change  of  custody,  or  any  other 
issue  which  may  arise  from  said  custody,  before  or  after  the  same  is 
definitely  determined,  shall  be  presented  in  writing  by  each  of  the 
parties;  and  after  verbal  evidence  has  been  taken  the  judge  shall  decide 
whatever  he  may  deem  proper,  in  a  ruling  which  may  be  appealed  from 
for  review  and  for  a  stay  of  proceedings. 

Petitions  made  for  temporary  maintenance  are  excepted  from  the 
foregoing  provisions,  which  shall  be  heard  and  determined  in  accord- 
ance with  the  provisions  of  Title  XVIII,  Book  II,  of  this  law. 

ART.  1897.  For  the  purpose  of  ordering  the  custody  in  the  case  of 
the  second  paragraph  of  article  1879,  it  must  be  first  shown  that  the 
suit  for  divorce,  the  annulment  of  the  marriage,  or  for  adultery,  insti- 
tuted by  the  husband,  has  been  admitted. 

ART.  1898.  The  admission  of  the  complaint  or  charge  being  proven, 
the  judge  shall  call  at  the  home  of  the  husband  and  shall  endeavor  to 
have  him  agree  with  his  wife  as  to  the  person  to  be  named  custodian; 
and  if  they  can  not  agree  the  judge  shall  appoint  the  person  designated 
by  the  husband,  should  there  be  no  good  grounds  against  such  appoint- 
ment. Otherwise,  he  shall  select  the  person  whom  he  may  consider 
most  proper. 

ART.  1899.  The  rules  established  in  articles  1884,  1885,  1886,  1887, 
and  1888,  the  first  part  of  1889,  1891,  and  1896  shall  be  applicable  to 
the  custodies  in  the  cases  mentioned  in  the  second  paragraph  of 
article  1879. 

ART.  1900.  In  order  that  the  custody  of  a  single  woman  may  be 

lrThe  decision  ordering  the  dissolution  of  the  custody  is  not  definite,  because  the 
woman  in  interest  may  again  request  it. — Decision  of  October  15,  1888. 

2  The  power  granted  by  this  article  to  the  woman  to  designate  the  person  in  whose 
custody  she  desires  to  be  placed,  is  not  nor  can  it  be  absolute,  but  is  limited  to  the 
residents  of  the  district  over  which  the  judge  exercises  jurisdiction,  in  accordance 
with  the  jurisprudence  based  upon  the  spirit  of  the  laws  of  the  Recopilaci6n. — Decision 
of  June  30,  1866. 


388  LAW    OF    CIVIL    PROCEDURE. 

ordered  in  the  cases  mentioned  in  subdivision  3  of  article  1879,  it  must 
be  requested  in  writing,  signed  by  the  said  woman  herself  or  by  another 
person  at  her  request,  stating  the  reasons  which  exist  for  fearing  that 
coercion  or  violence  will  be  employed  to  prevent  her  from  carrying 
out  her  purpose. 

ART.  1901.  If  the  judge  should  consider  that  the  reasons  are  well 
founded,  he  shall  call  at  the  home  of  the  applicant,  and  without  the 
presence  of  her  parents  or  grandparents  shall  request  her  to  state 
whether  or  not  she  ratines  her  petition. 

ART.  1902.  Should  she  not  ratify  it,  the  judge  shall  make  an  order 
dismissing  all  proceedings,  which  shall  be  filed. 

ART.  1903.  Should  she  ratify  her  petition,  the  judge  shall  require 
the  parents  or  grandparents  to  designate  a  custodian,  and  shall  require 
the  person  interested  to  state  whether  or  not  she  agrees  to  the  custo- 
dian they  may  have  designated. 

ART.  1904.  Should  the  person  interested  not  oppose  the  designation, 
and  even  should  she  oppose  it,  if  the  judge  should  consider  that  the 
person  designated  has  the  necessary  qualifications,  said  person  shall  be 
made  the  custodian. 

ART.  1905.  Should  the  judge  consider  that  there  are  grounds  for 
the  objections  of  the  interested  person,  or  that  the  custodian  does  not 
possess  the  necessary  qualifications,  he  shall  appoint  another,  who  shall 
at  once  be  made  the  custodian.  There  shall  be  no  remedy  whatsoever 
against  this  decision. 

ART.  1906.  In  the  same  ruling  the  judge  shall  order  that  there  be 
delivered  to  the  person  placed  in  custody  the  bedding  and  persona] 
clothing,  according  to  inventory.  Should  any  question  arise  as  to  the 
clothing  to  be  delivered,  the  judge  shall  decide  it  without  further 
remedy. 

ART.  1907.  The  custody  shall  continue  until  the  marriage  is  celebrated. 

ART.  1908.  Such  custod}^,  however,  may  cease: 

1.  When  the  marriage  is  not  celebrated  within  six  months  from  the 
day  on  which  the  custody  was  ordered. 

2.  When  the  person  interested  abandons  her  purpose. 

In  either  case  the  judge  shall  order  that  she  be  restored  to  the  house 
of  her  parents  or  grandparents,  and  shall  cause  the  proper  entiy 
thereof  to  be  made  in  the  record. 

ART.  1909.  In  order  to  decree  the  custody  in  the  cases  mentioned  in 
subdivision  4  of  article  1879,  it  is  necessary: 

1.  That  the  person  interested  request  it  either  in  writing  or  ver- 
bally, or  if  unable  to  do  so  in  person  that  another  do  so  in  his  or  her 
name,  but  in  any  case  the  petition  must  be  ratified  in  the  presence  of: 
the  judge,  should  the  person  have  the  necessary  legal  capacity. 

2.  That  the  judge  be  convinced  of  the  truth  of  the  facts,  either 


LAW    OF    CIVIL    PROCEDURE.  389 

from  the  evidence  furnished  by  the  person  interested  or  from  data 
he  himself  has  been  able  to  secure. 

ART.  1910.  Notwithstanding  the  provisions  of  the  foregoing  article, 
judges  may  decree  the  custody  without  a  request  from  the  person 
interested,  if  it  should  appear  to  them  that  the  making  of  said  request 
impossible. 

ART.  1911.  If  the  judge  should  consider  that  custody  is  proper,  the 
jrson  he  may  designate  shall  be  appointed  custodian. 
ART.  1912.  With  regard  to  the  delivery  of  clothing  and  bedding,  the 
)i*ovisions  of  articles  1884  et  seq.  shall  be  observed. 
ART.  1913.  After  the  custody  has  been  ordered  a  curator  ad  litein 
mil  be  appointed  for  the  ward,  and  when  he  accepts  the  charge  the 
jord  shall  be  delivered  to  him  in  order  that  he  may  state  and  re- 
in the  proper  action  what  may  be  advisable  for  the  protection 
>f  said  person. 

ART.  1914.  If  the  judge  should  have  notice  that  some  orphan  under 
age  of  fourteen  years,  if  a  male,  and  under  twelve  years,  if  a 
female,  or  an  incapacitated  person,  is  embraced  in  the  case  mentioned 
paragraph  five  of  article  1879,  he  shall  proceed  to  secure  said  person 
ind  his  property,  placing  him  in  custody  and  appointing  a  tutor  or 
•urator  according  to  law. 

ART.  1915.  Without  prejudice  to  the  provisions  of  the  second  para- 
raph  of  article  1896,  in  the  same  ruling  in  which  the  judge  orders  the 
•ustody  of  a  person,  he  shall  allow  him  for  his  temporary  maintenance 
amount  he  may  deem  reasonably  necessary  according  to  his  prop- 
?rty,  or  that  of  the  person  who  is  to  furnish  said  maintenance,  which 
tust  be  paid  monthly  in  advance. 

ART.  1916.  To  secure  the  payment  of  said  maintenance  the  judge 
mil  take  such  steps  as  he  may  consider  necessary,  and  even  issue 
ittachments  against  property  therefor. 

ART.  1917.  In  the  cases  1  and  2  of  article  1879  the  maintenance  shall 
delivered  to  the  woman  in  custody;  in  the  other  cases  of  the  same 
irticle  it  shall  be  delivered  to  the  custodian. 

TITLE  V. 

SUBSTITUTION  FOR  THE  CONSENT  OF  PARENTS,  GRANDPARENTS,  OK  CUEATORS 
TO  CONTRACT  MARRIAGE.1 

ART.  1918.  In  the  cases  in  which,  according  to  law,  it  is  the  duty  of 
te  judicial  authority  to  give  its  consent  for  the  marriage  of  a  minor, 
latter  must  furnish  documentary  evidence  or  the  testimony  of  wit- 
lesses  to  the  effect  that  he  is  comprised  in  one  of  the  following  cases: 
That  he  has  no  father,  mother,  paternal  nor  maternal  grandfather, 

1  See  the  provisions  of  articles  45  et  seq.  of  the  Civil  Code. 


390  LAW    OF    CIVIL    PROCEDURE. 

nor  curator  designated  by  will;  or  in  case  there  are  such  persons  that 
they  are  living  in  countries  where  it  would  take  more  than  a  year  to 
communicate  with  them  and  receive  a  reply. 

2.  That  the  whereabouts  of  said  parents,  grandparents,  or  curator  is 
unknown. 

3.  That  said  persons  are  legally  or  physically  prevented  from  giving 
their  consent. 

4.  That  the  curator  designated  by  will  is  a  relative  within  the  fourth 
civil   degree   of   the  person  with  whom  it  is  proposed  to  contract 
marriage. 

ART.  1919.  When  the  evidence  has  been  furnished  the  record  shall 
be  delivered  to  the  public  prosecutor  (promotor  fiscal)  in  order  that  he 
may  state  whether  he  finds  it  complete,  or  otherwise  to  propose  the 
steps  which  in  his  judgement  should  be  taken. 

ART.  1920.  When  the  record  is  returned  by  the  public  prosecutor, 
and  the  evidence  is  completed  in  a  proper  case,  the  judge  shall  order 
what  may  be  proper. 

ART.  1921.  If  the  person  who  proposes  to  contract  marriage  should 
be  a  natural  or  illegitimate  child,  the  judge  shall  render  a  decision 
authorizing  or  refusing  permission,  as  he  may  deem  proper,  according 
to  the  data  and  information  he  may  have  been  able  to  secure  as  to 
whether  or  not  the  marriage  should  be  celebrated. 

The  ruling  refusing  consent  may  be  appealed  from  for  review  and 
for  a  stay  of  proceedings. 

ART.  1922.  Should  the  petitioner  be  a  legitimate  child  the  judge 
shall  order  a  meeting  of  the  relatives,  ordering  for  the  purpose  that 
they  be  cited  to  appear  at  a  certain  day,  hour,  and  place;  and  that  the 
necessary  letters  rogatory  be  issued  to  cite  those  living  away  from  the 
town  to  appear  in  person  or  by  means  of  a  special  attorney,  under 
the  admonition  that  their  failure  to  appear,  without  a  legitimate  excuse 
or  impediment,  shall  be  punished  with  a  fine  which  the  judge  shall 
fix,  but  which  shall  not  exceed  125  pesetas. 

An  attorney  can  not  represent  more  than  one  person. 

ART.  1923.  The  meeting  of  relatives  mentioned  in  the  foregoing 
article  shall  be  composed: 

1.  Of  the  ascendants  of  the  minor. 

2.  Of  his  brothers  who  are  of  age. 

3.  Of  the  husbands  of  the  sisters,  also  of  legal  age,  whose  wives  are 
living. 

4.  In  the  absence  of  ascendants,  brothers,  and  husbands  of  sisters,  or 
when  there  are  less  than  three,  the  meeting  shall  be  made  up  to  com- 
pose four  members,  with  the  nearest  male  relatives  of  legal  age,  taken 
equally  from  both  lines,  commencing  with  that  of  the  father.     When 
the  degree  of  relationship  is  equal,  the  older  persons  shall  be  pre- 


LAW    OF    CIVIL    PEOCEDUEE.  391 

f erred.     The  curator,  even  if  a  relative,  shall  not  be  counted  in  the 
number  of  those  who  are  to  form  the  meeting. 

5.  In  the  absence  of  relatives  the  meeting  shall  be  completed  by 
selecting  honorable  neighbors,  if  possible  from  among  those  who  have 
been  friends  of  the  parents  of  the  minor. 

ART.  1924.  Attendance  at  the  meeting  of  relatives  shall  be  obliga- 
tory with  regard  to  those  who  reside  in  the  domicile  of  the  minor  or 
in  another  town  not  more  than  thirty  kilometers  distant  from  the 
place  where  it  is  to  be  held,  the  fine  prescribed  in  article  1922  being 
imposed  for  their  absence  without  cause.  The  relatives  who  reside 
beyond  that  distance,  but  within  the  territory  of  the  islands  of  Cuba 
and  Porto  Rico,  respectively,  shall  also  be  cited  although  distance  may 
serve  as  an  excuse. 

Should  they  not  attend,  they  shall  be  substituted  with  the  relative 
of  preferred  degree  and  condition,  although  not  cited,  who  may  volun- 
tarily attend,  or  with  the  one  who  should  intervene  according  to  the 
provisions  of  the  foregoing  article. 

ART.  1925.  If  the  petitioner  should  not  have  designated  the  names 
of  his  ascendants,  brothers,  and  husbands  of  his  sisters  who  should 
compose  the  meeting,  he  shall  be  required  to  do  so  at  once. 

He  shall  also  be  required  to  state  the  names  of  the  next  nearest  rela- 
tives in  both  lines  in  case  that  those  mentioned  do  not  reach  four,  and 
case  that  even  with  these  the  said  number  is  not  completed  he  shall 
ite  who  are  the  reputable  neighbors  who  have  been  friends  of  his 

irents. 

ART.  1926.  The  judge  shall  select  from  among  the  persons  designated 
the  foregoing  article  those  who  are  to  compose  the  meeting,  desig- 

iting  alternatively  the  relatives  in  both  lines,  commencing  with  the 

iternal  line. 

ART.  1927.  The  relative  who  believes  himself  to  have  been  over- 
>ked  on  account  of  another  relative  of  a  degree  more  remote  having 

sen  selected,  can  demand  his  admission  to  the  meeting. 

Should  he  not  make  such  a  demand  it  shall  be  understood  that  he 

enounces  this  right  and  the  resolutions  of  the  meeting  shall  be  valid. 

ART.  1928.  The  curator  designated  by  will  and  the  minor  may,  before 

ie  celebration  of  the  meeting,  challenge  the  relative  or  friend  who 

iay  have  been  appointed  when  in  their  judgment  there  exist  reasons 

>r  presuming  there  would  be  a  lack  of  impartiality  or  that  he  would 
guided  by  selfish  motives. 

ART.  1929.  The  meeting  having  assembled  on  the  day  appointed 

ider  the  chairmanship  of  the  judge,  before  deliberating  on  the  object 
)f  the  meeting  the  clerk  shall  report  the  petitions  for  exclusion,  and  if 
have  been  presented  in  due  form  the  judge  shall  decide  what  he 

msiders  proper. 


392  LAW    OF    CIVIL    PROCEDUKE. 

When  so  many  petitions  have  been  admitted  that  there  is  not  a  suf- 
ficient number  of  members  to  constitute  the  meeting,  it  shall  be  con- 
tinued to  the  nearest  day  possible,  and  the  one  excused  shall  be  supplied 
by  another  relative  or  friend. 

The  admissions  or  challenges  shall  then  be  discussed,  after  which 
and  after  a  hearing  of  the  parties  interested,  should  they  request  it, 
these  questions  shall  be  decided  by  the  meeting  and  the  judge  by  a 
majority  vote,  the  vote  of  the  judge  being  decisive  in  case  of  a  tie. 

Those  challenged  shall  retire  before  the  vote  is  taken. 

ART.  1930.  After  the  meeting  is  definitely  constituted  it  shall  delib- 
erate as  to  whether  the  marriage  proposed  is  advantageous  or  prejudi- 
cial to  the  minor. 

The  discussion  shall  always  be  secret,  the  clerk  retiring  before  the 
same  commences. 

ART.  1931.  After  the  discussion  is  over  the  clerk  shall  return  and 
the  voting  shall  commence. 

The  resolution  of  the  meeting  taken  by  an  absolute  majority  of 
votes  shall  constitute  one  vote,  and  the  vote  of  the  judge  shall  be 
another,  who  shall  cast  his  vote  separately. 

When  there  is  a  tie  of  the  votes  of  the  relatives  and  friends,  it  shall 
be  decided  by  the  judge,  who  shall  always  vote  last. 

If  the  vote  of  the  judge  should  not  be  in  harmony  with  that  of  the 
majority,  the  vote  favorable  to  the  marriage  shall  prevail. 

ART.  1932.  The  clerk  shall  draft  a  minute,  sufficiently  explicit  of 
the  resolutions  taken  by  the  meeting,  and  it  shall  be  signed  by  the 
judge  and  all  who  attended  the  meeting,  said  clerk  certifying  to  the 
same. 

ART.  1933.  There  shall  be  no  remedy  whatsoever  against  the  reso- 
lution of  the  meeting,  consenting  to  or  denying  the  permission. 

If  it  were  favorable  to  the  marriage,  a  certified  copy  of  the  minute 
shall  be  given  to  the  minor  interested,  in  order  that  he  may  prove  the 
facts  to  whomsoever  he  desires. 

ART.  1934.  When,  according  to  law,  it  is  the  duty  of  the  curator 
designated  by  will  to  grant  or  refuse  his  consent  to  the  proposed  mar- 
riage, it  shall  be  the  exclusive  right  of  the  municipal  judge  of  the 
town  of  the  domicile  of  the  minor  to  call,  at  the  petition  of  the  minor 
and  of  the  curator,  the  meeting  of  relatives  and  friends,  and  preside 
over  the  same. 

The  municipal  judge  shall  have  the  same  attributes  and  powers  that 
are  granted  to  judges  of  first  instance  by  the  foregoing  articles,  with 
the  following  exceptions: 

1.  The  judge  shall  have  neither  voice  nor  vote  in  the  deliberations. 

2.  The  relatives  and  residents  shall  first  vote,  an  absolute  majority 
thereof  passing  a  resolution,  and  then  the  curator  shall  vote  separately. 

3.  Should  there  be  a  tie  in  the  votes  of  the  relatives  and  residents, 


: 


LAW    OF    CIVIL    PROCEDURE.  393 

the  vote  of  the  nearest  relative  shall  decide,  and  should  there  be  two 
relatives  of  the  same  degree  of  relationship,  the  vote  of  the  elder  shall 
decide.  But  if  the  meeting-  be  composed  of  respectable  residents  only, 
the  eldest  of  them  shall  have  the  deciding  vote. 

4.  When  the  vote  of  the  curator  does  not  agree  with  that  of  the 
meeting,  the  vote  favorable  to  the  marriage  shall  prevail. 

ART.  1935.  When  legitimate  sons  over  twenty-three  years  of  age, 
and  daughters  over  twenty  years  of  age,  desire  to  prove  to  the  munici- 
pal judge  their  petition  for  the  advice  of  their  parents  or  grandparents 
to  contract  marriage,  they  shall  verbally  request  said  authority  that  he 
cite  the  person  who  should  give  said  advice  to  appear  in  order  to  state 
whether  his  advice  was  favorable  or  unfavorable. 

A  record  shall  be  made  both  of  the  appearance  of  the  person  request- 
ing advice,  as  well  as  that  of  the  person  who  should  give  or  refuse  it. 
ART.  1936.  If  the  person  cited  to  appear  should  not  appear,  he  shall 
be  again  cited;  and  should  he  persist  in  refusing  to  appear  after  the 
third  citation,  his  favorable  advice  to  the  marriage  shall  be  taken  for 
ranted. 

ART.  1937.  In  the  event  that  the  person  cited  can  not  appear  owing 
illness  or  another  legitimate  impediment,  the  municipal  judge  shall 
o  to  his  house  or  place  where  he  may  be  found  in  order  to  receive  his 

laration. 

ART.  1938.  When  the  person  cited  appears  he  shall  be  advised  of 
e  petition  of  the  son  or  daughter,  or  grandson  or  granddaughter, 
d  he  shall  be  required  to  give  his  favorable  or  unfavorable  advice 
r  the  marriage,  without  allowing  evasions  or  excuses  of  any  kind, 
der  the  admonition  that  otherwise  his  advice  shall  be  considered 
vorable. 

ART.  1939.  The  reply  given  by  the  father  or  grandfather  shall  be 
tered  in  the  record  and  a  certified  copy  of  the  same  shall  be  given 
the  minor  in  order  that  he  may  make  use  of  his  rights. 
ART.  1940.  When  consent  has  been  requested  owing  to  the  absence 
of  parents,  grandparents,  or  testamentary  curators,  or  when  their 
whereabouts  is  unknown,  and  they  should  appear  before  consent  is 
granted,  the  proceedings  shall  immediately  be  terminated. 

Should  they  appear,  or  notice  of  their  whereabouts  be  received  after 
consent  has  been  given,  but  before  the  celebration  of  the  marriage, 
the  judge  shall  annul  the  former,  and  recover  the  documents  granting 
the  same,  so  that  it  may  produce  no  effect. 

ART.  1941.  The  provisions  of  the  foregoing  article  shall  also  be 
observed  when  the  mother  may  have  given  her  consent  owing  to  the 
absence  of  the  father,  or  when  his  whereabouts  was  unknown,  or  when 
consent  was  given  by  the  grandfather  or  testamentary  curator,  if  the 
impediment  of  the  person  whom  they  substitute  should  cease. 


394  LAW    OF    CIVIL    PROCEDURE. 

TITLE  VI. 

MANNER  OF  ELEVATING  A  VERBAL  WILL  OR  CODICIL  TO  A  PUBLIC  INSTRUMENT. 

ART.  1942.  At  the  instance  of  a  legitimate  party  a  verbal  will  may 
be  elevated  to  a  public  instrument. 

ART.  1943.  For  the  purposes  of  the  foregoing  article  a  legitimate 
party  shall  be  considered — 

1.  He  who  may  have  an  interest  in  the  will. 

2.  He  who  may  have  received  in  the  will  any  commission  imposed 
by  the  testator. 

3.  He  who  according  to  law  is  authorized  to  represent,  without  a 
power  of  attorney,  any  of   the  persons  mentioned  in  the  foregoing 
paragraphs. 

ART.  1944.  If  at  the  time  of  making  the  verbal  will  notes  or  memo- 
randa should  have  been  taken  of  the  dispositions  of  the  testator,  they 
shall  be  presented  with  the  petition;  the  names  of  the  witnesses  who 
are  to  be  examined,  and  that  of  the  notary,  if  one  was  present  at  the 
making  of  the  will,  and  for  any  reason  whatsoever  did  not  elevate  it  to 
a  public  instrument,  shall  be  stated  as  well  as  the  legitimate  interest  of 
the  person  instituting  the  proceedings. 

ART.  1945.  The  judge  shall  issue  an  order  for  the  witnesses,  and  the 
notary,  in  a  proper  case,  to  appear,  at  the  day  and  hour  he  may  desig- 
nate, with  the  admonition  that  a  fine  will  be  imposed  and  the  other 
corrections  which  their  disobedience  may  make  necessary. 

ART.  1946.  If  any  of  the  persons  to  be  examined  should  not  appear, 
without  alleging  a  good  cause  preventing  him  from  being  present,  the 
judge  shall  suspend  the  proceedings;  he  shall  set  a  day  and  hour  for 
their  continuation,  and  shall  order  the  fine  imposed  to  be  enforced,  and 
shall  increase  the  correction  if  the  disobedient  person  is  again  in 
default. 

ART.  1947.  When  a  witness  does  not  appear  on  account  of  his  illness, 
or  because  he  is  prevented  from  appearing,  the  person  interested  may 
request  that  the  court  go  to  the  house  of  the  sick  person  in  order  to 
receive  his  declaration  immediately  after  the  other  witnesses  have  been 
examined. 

When  a  witness  is  absent  from  the  judicial  district,  the  part}r  in 
interest  may  request  that  letters  rogatory  be  issued  for  his  examina- 
tion, addressed  to  the  judge  of  the  town  of  his  actual  residence. 

ART.  1948.  The  witnesses  and  the  notary,  in  a  proper  case,  shall  be 
examined  separately  and  in  such  manner  that  none  of  them  shall  have 
knowledge  of  the  declarations  of  those  who  preceded  them. 

The  clerk  shall  certify  that  he  is  acquainted  with  the  witnesses. 

Should  he  not  be  acquainted  with  them,  he  shall  require  that  they  be 
identified  by  two  other  witnesses. 

ART.  1949.  If  the  official  character  of  the  notary  who  was  present 


*^ 
I 


LAW    OF    CIVIL    PROCEDURE.  395 

at  the  execution  of  the  verbal  will  is  not  well  known,  it  shall  also  be 
proven  in  a  proper  ease. 

ART.  1950.  The  judge  shall,  under  his  liability,  see  that  in  the  dec- 
larations are  stated  the  age  of  the  witnesses  and  their  place  of  residence 
at  the  time  of  the  execution  of  the  will. 

ART.  1951.  When  the  wishes  of  the  testator  have  been  inscribed  upon 
some  cedula  or  private  document,  it  shall  be  shown  to  the  witnesses  in 
order  that  they  may  state  if  it  is  the  same  that  was  read  to  them,  and 
whether  they  acknowledge  as  genuine  their  respective  signatures  and 
rubrics,  if  the  same  had  been  affixed  b\r  them. 

ART.  1952.  If,  from  the  declarations  of  the  witnesses,  it  is  clearly 
and  positively  shown — 

1.  That  the  testator  had  the  serious  and  deliberate  purpose  of  execut- 
ing his  last  will. 

2.  That  the  witnesses,  and  the  notary,  in  a  proper  case,  simultane- 
ously heard  from  the  lips  of  the  testator  all  the  dispositions  he  desired 
to  make  as  his  last  will,  either  by  word  of  mouth  or  by  reading  or 

Jving  read  some  note  or  memorandum  containing  the  same. 
3.  That  the  number  of  witnesses  was  the  number  required  by  law, 
according  to  the  circumstances  of  the  time  and  place  where  the  will 
was  executed,  and  that  they  possess  the  qualifications  required  to  serve 
as  witnesses  to  wills. 

KThe  judge  shall  declare  the  result  of  such  declarations  to  be  a  will, 
thout  prejudice  to  third  parties,  and  shall  order  that  the  papers  in 
the  case  be  filed  in  a  protocol. 

ART.  1953.  When  anv  contradictions  appear  in  the  declarations  of 

ie  witnesses,  the  judge  shall  approve  as  the  will  only  such  statements 
as  are  agreed  upon  by  all  the  witnesses. 

If  the  last  wishes  of  the  testator  should  have  been  set  forth  in  a 
statement  presented  or  written  at  the  time  of  the  execution,  the  result 
thereof  shall  be  taken  as  the  will,  provided  that  all  the  witnesses  agree 
that  it  is  the  same  paper  that  was  written  or  presented  at  said  time, 
even  if  some  of  them  do  not  remember  some  of  its  dispositions. 

ART.  1954.  The  filing  shall  take  place  in  the  protocol  of  the  notary 
of  the  seat  of  the  judical  district,  and  should  there  be  more  than  one, 
in  that  designated  by  the  judge. 

TITLE  VII. 

OPENING  OF  SEALED  WILLS  AND  THE  FILING  IN  PROTOCOLS  OF  TESTAMENTARY 

MEMORANDA.1 

ART.  1955.  Any  person  having  in  his  possession  any  sealed  will 
must  present  it  to  the  judge  of  competent  jurisdiction  as  soon  as  he 
learns  of  the  death  of  the  testator. 


1  Article  714  of  the  civil  code  maintains  the  force  of  the  provisions  of  this  title. 


396  LAW    OF    CIVIL    PROCEDURE. 

ART.  1956.  Any  person  having  knowledge  of  the  execution  of  a  will, 
and  that  it  is  in  the  possession  of  a  third  party,  may  also  demand  its 
presentation. 

If  the  petitioner  be  a  stranger  to  the  family  of  the  deceased,  he  shall 
make  oath  that  he  is  not  influenced  by  malice,  but  that  he  believes  "that 
he  may  in  some  way  have  an  interest  in  the  will. 

ART.  1957.  The  court  clerk  shall  at  once  examine  the  envelope  which 
contains  the  will,  and  shall  make  a  memorandum  of  its  condition, 
describing  minutely  the  reasons,  if  there  be  any,  for  suspecting  that 
it  has  been  opened,  altered,  amended,  or  erased. 

This  memorandum  shall  also  be  signed  by  the  person  presenting  the 
will,  and  if  he  is  unable  or  refuses  to  sign  the  same,  a  witness,  at  his 
request,  may  do  so  in  the  first  case,  and  two  witnesses  selected  by  the 
court  clerk  in  the  second  case. 

ART.  1958.  The  court  clerk  shall  immediately  thereafter  report  the 
matter  to  the  judge,  who,  after  the  death  of  the  testator  is  proven, 
shall  order  that  on  the  following  day,  or  before  if  possible,  the  notary 
before  whom  the  will  was  executed  and  the  attending  witnesses  be 
cited  to  appear. 

ART.  1959.  After  the  witnesses  have  appeared,  the  sealed  envelope 
shall  be  presented  to  them  for  examination,  and  they  shall  declare 
under  oath  whether  they  acknowledge  the  genuineness  of  their  own 
signatures  and  rubrics  which  appear  thereon,  and  whether  they  find  it 
in  the  same  condition  as  at  the  time  it  was  signed. 

If  any  of  the  witnesses  were  unable  to  sign  and  another  did  it  for 
him,  the  two  shall  be  examined,  and  the  signature  shall  be  acknowl- 
edged by  the  person  who  wrote  it. 

ART.  1960.  The  witnesses  shall  be  examined  successively  in  their 
order,  and  shall  be  questioned  as  to  their  age  the  day  the  will  was 
executed. 

ART.  1961.  If  one  or  more  of  the  witnesses  should  have  died  or  be 
absent,  the  others  shall  be  asked  if  they  saw  him  affix  his  signature 
and  rubric,  and  furthermore  two  other  persons  acquainted  with  the 
signature  and  rubric  of  the  deceased  or  absent  witnesses  shall  be 
examined  with  regard  to  their  similarity  to  those  which  appear  on  the 
envelope. 

If  this  can  not  be  done,  the  other  evidence  to  that  effect  shall  be 
taken  in  the  ordinary  manner. 

ART.  1962.  In  case  of  the  death  of  the  notary  before  whom  the  will 
was  executed,  the  mark  (signo),  signature,  and  rubric  on  the  envelope  or 
wrapper  shall  be  compared  by  the  judge,  assisted  by  two  experts  ap- 
pointed by  himself,  with  those  appearing  on  the  copy  of  the  will,  which 
must  exist  in  the  special  register  of  sealed  wills,  for  which  purpose  the 
judge  shall  go  to  the  place  where  the  same  is  kept,  and  if  that  be  not 
possible  he  shall  commission  the  proper  person  therefor. 


LAW    OF    CIVIL    PEOCEDURE.  397 

Should  the  execution  have  taken  place  prior  to  the  time  the  notarial 
law  went  into  effect,  the  comparison  shall  be  made  with  other  signa- 
tures and  marks  of  the  same  notary  of  undoubted  authenticity. 

ART.  1963.  If  the  notary  and  all  the  witnesses  have  died,  evidence 
of  these  facts  shall  be  taken,  as  well  as  of  the  time  of  their  death,  their 
public  reputation,  and  whether  they  were  in  the  town  when  the  will 
was  executed. 

ART.  1964.  The  relatives  of  the  testator  who  may  be  presumed  to  be 
interested  may,  if  they  so  desire,  be  present  at  the  opening  and  read- 
ing of  the  will,  but  shall  not  be  permitted  to  oppose  the  performance 
of  any  proceeding,  even  should  they  present  a  subsequent  will. 

ART.  1965.  After  the  aforementioned  proceedings  have  been  per- 
formed, and  it  appears  therefrom  that  in  the  execution  of  the  will  the 
formalities  prescribed  by  law  have  been  observed,  and  that  the  envelope 
is  authentic,  the  judge  shall  open  the  same  and  shall  read  to  himself 
the  testamentary  dispositions  contained  therein. 

The  opening  shall  be  postponed  when  on  the  said  wrapper  or  in  an 
open  codicil  the  testator  shall  have  ordered  that  it  be  not  opened  until 
a  certain  time,  in  which  case  the  judge  shall  suspend  the  proceedings, 
and  shall  iile  the  proceedings  taken  together  with  the  closed  will  in  the 
court  until  the  time  designated  by  the  testator  arrives. 

ART.  1966.  After  the  judge  has  read  the  will  and  codicil  he  shall 
deliver  it  to  the  clerk  to  be  read  aloud,  unless  it  should  contain  a 
request  of  the  testator  that  some  clause  or  clauses  be  reserved  and  kept 
secret  until  a  certain  time,  in  which  case  the  reading  shall  be  confined 
to  the  other  clauses  of  the  testamentary  disposition. 

ART.  1967.  After  the  will  has  been  read  the  judge  shall  order  that 
it  be  filed,  together  with  the  original  proceedings  had  at  the  opening 
thereof,  in  the  registry  of  the  notary  before  whom  said  will  was  exe- 
cuted, and  that  a  copy  of  said  order  be  given  to  the  person  who  pre- 
sented the  will,  should  he  request  it,  for  his  protection.1 

ART.  1968.  Any  person  having  in  his  possession  any  testamentary 
memorandum  must  present  it  to  the  judge  of  competent  jurisdiction 
us  soon  as  he  learns  of  the  death  of  the  testator,  and  shall  request  that 

xThe  former  law  of  civil  procedure  specifically  determined  what  rules  of  article 
1208,  reproduced  in  articles  1812  et  seq.  of  the  present  law,  were  applicable  to  the 
act  of  voluntary  jurisdiction  expressly  mentioned  in  the  law;  and  among  the  same 
the  seventh  rule  was  not  included,  which  is  equivalent  to  article  1817.  Thus  the 
supreme  court  would  have  established  that  the  filing  in  the  protocol  of  a  secret  will 
could  not  be  denied  after  it  was  opened  with  the  proper  formalities,  on  account  of 
the  opposition  of  a  person  interested  (decision  of  January  20,  1880);  but  at  the  pres- 
ent time  we  do  not  believe  that  this  doctrine  is  compatible  with  article  1824  of  the 
new  law,  which  extends  all  the  general  provisions  relating  to  voluntary  jurisdiction 
to  the  acts  specially  mentioned,  in  so  far  as  they  are  not  opposed  to  what  is  pre- 
scribed with  regard  to  each;  and  article  1817  does  not  oppose  any  precept  contained 
in  articles  1956  et  seq. 


398  LAW    OF    CIVIL    PROCEDURE. 

it  be  filed  and  state  wlr^  it  is  in  his  possession.  With  the  document 
he  shall  present  documentary  evidence  of  the  death  of  the  testator 
and  shall  present  an  authentic  copy  of  the  will,  containing  such  iden- 
tification marks  as  may  be  necessary  to  show  that  it  is  genuine  and 
the  existence  of  the  will. 

If  said  documents  are  not  presented,  the  said  judge  shall  order  that 
they  be  produced  and  attached  to  the  record. 

ART.  1969.  Upon  the  document  the  clerk  shall  draft  a  statement, 
sufficiently  detailed,  of  the  actual  condition  of  the  memorandum  and 
the  circumstances  by  which  its  identity  with  that  indicated  in  the  will 
may  be  proven. 

This  statement  shall  be  signed  by  the  person  presenting  the  memo- 
randum; and  if  he  does  not  know  how,  or  does  not  desire  to  sign,  the 
provisions  prescribed  in  the  second  paragraph  of  article  1957  shall  be 
observed. 

The  clerk  shall  immediately  make  a  transcript  of  the  clause  or 
clauses  of  the  will  presented  which  refer  to  the  memorandum,  return- 
ing the  will  to  the  person  presenting  the  same,  who  shall  sign  a  receipt 
therefor. 

ART.  1970.  The  judge  shall  order  that  the  memorandum  be  read,  and 
that  the  identification  marks  thereupon  be  compared  with  those  stated 
in  the  will,  setting  a  day  and  hour  therefor.  Those  interested  in  the 
will  may  be  present  at  the  proceedings,  for  which  purpose  they  shall 
be  notified  of  the  time  fixed  and  be  advised  that  their  absence  shall 
not  prevent  the  proceedings  from  being  held  nor  be  a  reason  for  their 
nullity,  whatever  be  the  causes  alleged  for  nonattendance. 

ART.  1971.  Should  the  memorandum  be  under  sealed  cover,  the 
judge  shall  proceed  to  open  and  read  the  same  in  secret,  and  if  no  dis- 
position of  the  testator  should  be  found  therein  ordering  that  some 
clause  of  the  will  be  not  published  until  some  certain  day  or  time  he 
shall  deliver  it  to  the  court  clerk  to  be  read  aloud. 

Should  any  such  provision  be  found  therein,  the  reading  of  the  clauses 
to  which  it  refers  shall  be  omitted,  and  no  certificate  of  said  clauses 
shall  be  issued,  the  memorandum  remaining  sealed  and  filed  in  the 
archives  until  the  day  or  time  designated  by  the  testator. 

ART.  1972.  The  examination  and  comparison  of  the  identification 
marks  stated  in  the  will  for  the  purpose  of  proving  the  authenticity  of 
the  memorandum  shall  be  immediately  performed. 

A  proper  record  of  this  proceeding  shall  be  made,  which  shall  be 
signed  by  the  judge  and  the  other  parties  in  interest  who  may  be 
present. 

ART.  1973.  If  it  appears  from  the  proceedings  that  the  memorandum 
contains  the  conditions  required  by  the  testator  in  order  that  it  be  con- 
sidered authentic,  a  ruling  shall  be  made  ordering  it  to  be  filed,  with- 
out prejudice  to  any  right  which  the  parties  in  interest  may  have  to 
impugn  it  in  the  proper  action. 


LAW    OF    CIVIL    PROCEDURE.  399 

ART.  1974.  The  filing  shall  be  done  in  the  registry  of  the  notary 
before  whom  the  will  was  executed,  and  together  with  said  will.  Should 
this  be  impossible,  the  notary  shall  make  a  marginal  note  in  the  record 
of  the  will,  stating  the  existence  of  the  memorandum  and  the  book  and 
folio  at  which  the  same  is  filed. 

ART.  1975.  When  the  testator  has  made  reference  to  some  memo- 
randum in  his  own  handwriting,  or  only  signed  by  him,  without  men- 
tioning any  other  special  mark  of  identification,  as  soon  as  said  memo- 
randum, accompanied  by  the  documents  mentioned  in  article  1968,  has 
been  presented,  the  judge  shall  order  that  they  be  examined  by  three 
witnesses  thoroughly  familiar  with  the  writing  of  the  testator,  and  he 
may  also  designate  any  relatives  for  that  purpose  who  are  not  benefi- 
ciaries under  said  memorandum. 

Said  witnesses  or  relatives  shall  declare  under  oath  that  they  have 
no  reasonable  doubt  that  the  said  document  was  written  by  the  testator, 
and  if  only  signed  by  him,  that  it  is  his  signature  and  rubric. 

ART.  1976.  Furthermore,  if  the  judge  thinks  it  proper,  he  may, 
with  the  assistance  of  two  experts,  compare  the  handwriting,  sig- 
nature, and  rubric  of  the  memorandum  with  any  others  of  the  testator 
of  undoubted  authenticity  found  in  any  public  document  or  office  of 
the  State. 

ART.  1977.  Should   the   memorandum   prove  to  be  authentic,  the 

dge  shall  order  it  to  be  filed  as  prescribed  in  article  1973. 

ART.  1978.  If  the  memorandum  is  presented  while  proceedings  are 
pending  to  elevate  ji  verbal  will  to  a  public  instrument  or  for  opening 
a  sealed  will,  the  said  memorandum  shall  be  attached  to  the  record  and 

Ie  aforementioned  proceedings  shall  be  observed  for  the  filing  thereof. 


TITLE  VIII. 

PROCEEDINGS  TO  DISPENSE  WITH  THE  LAW. 


ART.  1979.  Proceedings  to  dispense  with  the  law  must  be  insti- 
tuted by  virtue  of  a  royal  order  communicated  to  the  judge  by  his 
immediate  superior,  except  in  the  cases  mentioned  in  article  1831. 

ART.  1980.  When  the  royal  order  has  been  received  by  the  court  it 
shall  be  complied  with,  and  the  person  who  obtained  it  shall  be  ordered 
to  present  the  necessary  evidence  of  the  facts  stated  in  his  petition  or 
of  those  required  by  the  royal  order. 

ART.  1981.  If  during  the  proceedings  the  person  interested  requests 
that  evidence  be  extended  to  other  facts  which  were  unknown  to  him 
when  he  signed  the  petition  or  that  he  believes  to  be  of  great  interest, 
the  judge  may  grant  the  request  if  he  should  consider  such  facts  to 
be  important. 

ART.  1982.  These  proceedings  shall  be  held  after  the  pro-motor  ji^-a! 
bus  boon  cited  to  appear.  The  persons  who  have  a  known  and  legiti- 


400  LAW    OF    CIVIL    PROCEDURE. 

mate  interest  in  the  subject  shall  also  be  cited  to  appear  if  it  has  been 
so  ordered  by  the  royal  order,  or  when  the  petitioner  so  requests. 

ART.  1983.  The  court  clerk  shall  certify  as  to  the  identity  of  the 
witnesses.  If  he  does  not  know  them,  he  shall  require  that  two  other 
witnesses  shall  identify  each  one  of  them,  and  that  they  sign  the  decla- 
rations of  those  not  identified  by  the  court  clerk. 

ART.  1984.  If  any  person  has  been  cited  to  appear  in  the  proceedings, 
he  shall  be  heard  if,  after  being  cited,  he  requests  that  the  record  be 
delivered  to  him. 

The  witnesses  and  documents  which  he  may  submit  as  to  the  facts 
which  are  the  subject  of  the  proceedings  shall  also  be  admitted. 

ART.  1985.  When  the  person  cited  does  not  appear  within  the  period 
designated  therefor,  the  hearing  of  the  proceedings  shall  be  continued 
with  the  intervention  of  the  promotor  fiscal  only,  unless  the  person 
cited  be  a  minor  or  incapacitated  person,  in  which  case  his  appearance 
shall  be  indispensable,  and  for  this  purpose  his  legitimate  representa- 
tive shall  be  compelled  to  appear  within  the  period  fixed  by  the  judge 
and  propose  whatever  may  be  proper  for  the  interests  of  the  minor  or 
incapacitated  person. 

ART.  1986.  If  during  the  pendency  of  proceedings  taken  without  cita- 
tion any  person  should  appear  and  oppose  the  dispensation  requested, 
he  shall  be  heard  if  he  has  a  legitimate  and  known  interest  in  the 
opposition. 

ART.  1987.  For  the  authentication  or  comparison  of  documents  the 
presence  of  the  promotor  fiscal  shall  be  indispensable. 

If  a  part  of  the  document  only  is  to  be  authenticated,  or  if  the  copy 
to  be  compared  is  not  complete,  the  promotor  fiscal  shall  indicate  in 
the  same  statement  whether  or  not  there  is  any  difference  in  the 
omitted  part  which  modifies  or  contradicts  the  part  authenticated  or 
compared. 

ART.  1988.  After  the  measures  ordered  to  be  taken  at  the  instance 
of  a  party  or  by  the  royal  order  have  been  had,  the  record  shall  be 
delivered  to  the  promotor  fiscal  for  his  written  opinion  thereon. 

ART.  1989.  If  the  promotor  fiscal  should  find  that  the  witnesses  have 
not  been  identified  in  the  manner  prescribed  in  article  1983,  or  should 
find  any  other  serious  defect,  he  shall  request  that  it  be  cured.  He 
may  also  request  that  such  steps  be  taken  as  he  may  deem  necessary 
for  a  true  classification  of  the  facts  on  which  the  petition  for  dispensa- 
tion is  based,  and  the  citation  of  the  parties  who,  having  a  legitimate 
interest  in  opposing  the  granting  thereof,  have  not  been  cited  at  the 
proper  time  when  they  should  have  been  citexi  in  accordance  with 
article  1982. 

ART.  1990.  If  the  promotor  fiscal  finds  the  proceedings  completed, 
he  shall  report  upon  the  merits  of  the  matter. 

ART.  1991.  After  the  promoter  fiscal  has  been  heard  the  judge  shall 


LAW    OF    CIVIL    PROCEDUEE.  401 

render  his  decision,  which  he  shall  transmit,  with  the  ercord,  to  the 
superior  court  in  the  customary  manner. 

ART.  1992.  The  chamber  of  administration  of  said  court  shall  hear 
the  public  prosecutor  thereupon,  and  after  curing  any  defects  which 
the  record  may  contain,  shall  agree  upon  the  report  to  be  sent  to  the 
colonial  department,  to  which  shall  be  transmitted  the  original  record, 
with  a  certified  copy  of  the  report  of  the  public  prosecutor.  If  any 
justice  should  dissent  from  the  majority,  he  may  make  a  separate 
report,  which  shall  be  attached  to  the  majority  report. 

TITLE  IX. 

INVESTITURE  OF  POWER  TO  APPEAR  IN  COURT.1 

ART.  1993.  Legitimate  children  not  emancipated  and  married  women, 
when  not  authorized  to  appear  in  court  by  law,  must  be  vested  with 
power  therefor  by  the  father  or  by  the  mother,  if  under  parental  con- 
trol, or  by  the  husband. 

ART.  1994.  Investiture  can  only  be  granted  when  the  person  request- 
ing it  is  included  in  one  of  the  following  cases: 

1.  When  the  parents  or  husband  are  absent  and  their  whereabouts 
i     M known,  there  being  no  good  reason  to  believe  that  they  will  soon 

turn. 

2.  When  the  father,  the  mother,  or  the  husband  refuses  to  appear  in 
court  on  behalf  of  the  son  or  wife. 

3.  When  an  action  has  been  instituted  against  the  petitioner. 

4.  When  the  petitioner  would  be  greatly  prejudiced  if  he  did  not 
institute  the  action  for  which  he  requests  investiture. 

ART.  1995.  The  promotor  fiscal  shall  always  be  heard  in  these  pro- 
dings. 

ART.  1996.  The  ruling  granting  the  investiture  to  a  legitimate  son 
not  emancipated  shall  also  order  that  he  be  provided  with  a  curator 
litem  in  the  manner  prescribed  in  Section  IV  of  Title  III  of  this 
k. 

ART.  1997.  Investiture  of  power  shall  not  be  necessary  for  the  son 
the  married  woman  to  litigate  against  a  parent  or  husband. 
ART.  1998.  Proceedings  instituted  for  the  purpose  of  granting 
thority  because  the  father  or  husband  refuses  to  represent  the  son  or 
e  wife,  shall  be  heard  and  determined  according  to  the  procedure 
tablished  for  incidental  issues. 

The  same  procedure  shall  be  observed  when,  before  granting  the 
wer  requested  on  account  of  the  absence  or  unknown  whereabouts 
the  father  or  husband,  he  appears  and  opposes  the  said  power. 

1999.   Should  the  father  or  husband  appear  after  the  power  is 

1  See  note  to  article  2. 
2901 26 


- 

not 

boo 


402  LAW    OF    CIVIL    PROCEDURE. 

granted,  his  opposition  shall  be  heard  and  determined  according  to 
the  procedure  established  for  incidental  issues. 

The  power  granted  shall  be  in  full  force  and  effect  until  a  tinal  deci- 
sion is  rendered. 

ART.  2000.  The  power  granted  shall  cease  to  have  any  effect  as  soon 
as  the  father  or  the  husband  appears  in  court  on  behalf  of  the  son  or 
wife. 

TITLE  X. 

PEOCEEDINGS  TO  PERPETUATE  TESTIMONY. 

ART.  2001.  Judges  shall  admit  and  order  that  all  proceedings  to  per- 
petuate testimony  instituted  before  them  be  taken,  provided  they  do 
not  relate  to  facts  which  may  prejudice  some  determinate  and  certain 
person. 

ART.  2002.  No  proceedings  of  this  character  shall  be  had  without 
first  hearing  ih$  promotor  fiscal. 

ART.  2003.  After  the  petition  has  been  allowed  the  witnesses  pre- 
sented by  the  petitioner  shall  be  examined  with  a  citation  of  the  pro- 
motor  fiscal  upon  the  facts  stated  in  the  petition. 

The  court  clerk  shall  certify  to  his  acquaintance  with  the  witnesses. 

Should  he  not  be  acquainted  with  them,  he  shall  require  that  they 
be  identified  by  two  other  witnesses. 

ART.  2004.  After  the  proceedings  have  been  had  the  record  shall  be 
referred  to  the  promotor  fiscal.  If  the  latter  should  find  that  some 
errors  have  been  committed,  or  that  the  witnesses  do  not  possess  the 
qualifications  required  by  law,  or  if  it  should  appear  from  their  state- 
ments that  some  certain  and  determinate  person  may  be  prejudiced,  he 
shall  recommend  whatever  he  may  consider  proper  in  each  case. 

ART.  2005.  If  the  promotor  fiscal  should  request  that  some  measure 
be  taken,  and  the  judge  should  consider  it  proper,  he  shall  order  that 
it  be  taken,  and  upon  the  execution  thereof  he  shall  again  refer  the 
record  to  the  promotor  fiscal.  If  the  latter  should  be  of  the  opinion 
that  some  certain  and  determinate  person  may  be  prejudiced,  and  the 
judge  should  consider  his  opinion  well  founded,  the  judge  shall  render 
a  decision  denying  his  approval  thereof. 

ART.  2006.  If  the  promotor  fiscal  should  request  that  the  petition 
be  approved,  and  if  the  judge  should  consider  it  proper,  he  shall  render 
a  decision  approving  what  ma}7  be  proper  according  to  law,  and  order- 
ing, if  it  relates  to  facts  of  acknowledged  importance,  that  it  be  filed 
in  the  protocol  of  the  register  of  the  court  clerk,  if  he  is  also  a  notanr, 
and  otherwise  in  that  of  another  notary  residing  in  the  town  which 
is  the  seat  of  the  judicial  district,  and  if  there  be  more  than  one,  then 
of  any  who  may  be  designated  by  the  person  in  interest. 

If  the  facts  embraced  in  the  proceedings  should  not  be  of  well- 


LAW    OF    CIVIL    PROCEDURE.  403 


nown  importance,  the  judge  shall  order  that  the  record  be  filed  in  the 
office  of  the  court  clerk. 

ART.  2007.  An  order  shall  also  be  contained  in  the  same  ruling 
requiring  that  an  authenticated  statement  of  the  proceedings  be  fur- 
nished to  the  petitioner,  if  he  should  so  request,  as  well  as  to  any  other 
person  who  may  desire  said  statement,  in  order  to  impugn  it  in  the 
proper  action,  if  he  may  be  prejudiced  thereby. 

ART.  2008.  If,  before  the  approval  of  the  proceedings,  any  person 
should  appear  and  object  thereto  by  reason  of  their  being  prejudicial 
to  him,  the  judge  shall  order  that  the  proceedings  of  voluntary  juris- 
diction be  discontinued,  reserving  their  rights  to  the  parties,  which 
they  may  exercise  in  the  proper  action. 

ART.  2009.  Proceedings  relating  to  possession  for  the  purpose  of 
recording  some  property  right  in  real  property  shall  be  had  in  accord- 
ance with  the  rules  prescribed  in  the  mortgage  law  in  force  in  the 
colonial  provinces,  in  the  regulations  for  its  execution,  and  in  other 
provisions  in  force. 

TITLE  XI. 

ALIENATION    OF    THE    PROPEBTY    OF    MINORS    AND    INCAPACITATED    PERSONS 
AND  SETTLEMENT  OF  THEIR  RIGHTS  OUT  OF  COURT. 

ART.  2010.  Judicial  permission  shall  be  necessary  in  order  to  alien- 
ate or  encumber  the  property  of  minors  or  incapacitated  persons 
which  pertains  to  the  following  classes: 

1.  Real  property. 

2.  Public  securities   and  commercial  paper  of  all  kinds,  whether 
made  payable  to  bearer  or  order. 

3.  Rights  of  all  kinds. 

•i.  Jewelry,  personal  property,  and  precious  objects  which  may  be 
preserved  without  deterioration.1 

ART.  2011.   In  order  to  decree  a  sale  it  shall  be  necessary: 

1.  That  the  father  or  the  mother,  in  a  proper  case,  of  the  child  not 
emancipated  should  request  it.     If  said  child  be  over  12  or  14  years  of 
age,  respectively,  according  to  sex,  it  shall  also  sign  the  petition. 

2.  That  in  the  absence  of  a  parent,  the  tutor  of  the  minor,  the 
curator  of  an  incapacitated  person,  or  the  minor,  together  with  his 

I'urator  request  it. 
3.  That  the  reason  for  the  alienation  and  the  purpose  to  which  the 
imount  obtained  is  to  be  applied  be  stated. 
4.  That  the  necessity  or  utility  of  the  alienation  be  proven. 
5.  That  the  promoter  fiscal  be  heard  in  the  matter. 
ART.   2012.  If   the  proof,   referred  to  in  number  4  of    the  fore- 
going article,  is  to  be  furnished  by  witnesses,  there  must  be  at  least 


j 


The  provisions  in  force  hereon  are  articles  164  and  270  to  275  of  the  Civil  Code. 


404  LAW    OF    CIVIL    PROCEDURE. 

three,  and  the  clerk  shall  identify  them.  Should  he  not  he  acquainted 
with  them  two  witnesses  for  the  purpose  of  identification  shall  be 
required. 

The  evidence  shall  be  taken  after  the  jtnnmrfor  fixcul  has  been  cited 
to  appear. 

ART.  2013.  After  the  evidence  has  been  taken,  and  after  fob  promoter 
fiscal  has  been  heard,  the  judge  without  further  proceedings  shall  ren- 
der a  decision,  granting  or  denying  the  authority  to  make  the  sale. 

This  ruling  may  be  appealed  from  for  review  and  a  stay  of  pro- 
ceedings. 

ART.  2014.  The  authority  shall  be  granted  in  all  cases  under  the 
condition  that  the  sale  must  be  made  at  public  auction,  after  an  appraise- 
ment, if  property  mentioned  in  numbers  1,  3,  or  4  of  article  2010  is 
involved. 

Sales  made  by  the  father,  or  mother,  in  a  proper  case,  exercising 
parental  authority,  are  excepted  from  the  foregoing  rule.  Such  sales 
may  be  made  without  any  other  requisite  than  that  of  having  first 
obtained  judicial  authority  with  a  hearing  of  th&  promoter  fiscal  and  of 
the  persons  mentioned  in  articles  219  and  213  of  the  mortgage  laws 
respectively  in  force  in  the  islands  of  Cuba  and  Porto  Rico. 

ART.  2015.  The  judge  shall  always  appoint  the  experts  for  the 
appraisement,  who  can  not  be  challenged.  Neither  can  the  third 
expert  be  challenged,  if  it  should  have  become  necessary  to  appoint  one 
upon  disagreement  of  the  first  two  experts. 

ART.  2016.  After  the  appraisement  has  been  made,  the  judge  shall 
order  that  the  sale  be  announced  for  a  period  of  thirty  days,  designat- 
ing the  day,  hour,  and  place  where  it  is  to  take  place,  and  that  edicts 
be  posted  in  the  customary  places,  inserting  them  also,  should  he  deem 
it  proper,  in  some  official  newspaper. 

ART.  2017.  No  bid  shall  be  received  which  does  not  amount  to  the 
sum  at  which  the  property  was  appraised. 

ART.  2018.  If  no  admissible  bid  has  been  received,  the  tutor  or 
curator  may  make  any  of  the  following  requests: 

1.  That  he  be  permitted  to  withdraw  from  further  proceedings  in 
the  matter,  and  that  the  proceedings  be  discontinued. 

2.  That  he  be  authorized  to  make  the  sale  extra  judicially,  for  the 
price  and  under  the  conditions  which  served  as  the  basis  for  the  public 
sale. 

3.  That  a  second  sale  be  announced,  with  a  reduction  of  twenty  per 
cent  of  the  appraised  value. 

If  he  makes  the  second  request,  and  if  no  extrajudicial  sale  can  be 
made  within  one  year  from  the  time  when  the  first  public  sale  was 
attempted,  he  can  request  that  another  public  sale  be  announced,  sub- 
ject to  the  aforementioned  reduction. 

ART.  2019.  The  second  public  sale  shall  take  place  with  the  same 
formalities  as  are  prescribed  for  the  first. 


LAW    OF    CIVIL    PROCEDURE.  405 

If  in  this  sale  there  should  be  no  admissible  bid,  the  judge  may 
authorize  the  tutor  or  curator  to  make  an  extrajudicial  sale  for  the 
priee  fixed  for  said  second  public  sale. 

ART.  2020.  When  the  sale  is  requested  for  the  payment  of  debts  or 
other  necessary  purposes,  a  third  public  sale  may  be  held,  at  the  request 
of  the  tutor  or  curator,  with  a  reduction  of  another  twenty  per  cent 
from  the  price  fixed  for  the  second  sale. 

If  no  admissible  bid  is  received  at  this  sale,  the  representative  of  the 
minor  may  be  authorized  to  sell  the  property  extrajudicially  at  the 
price  fixed  for  the  third  public  sale. 

ART.  2021.  The  securities  referred  to  in  number  two  of  article  2010 
shall  always  be  sold  through  a  stockbroker  or  agent,  whom  the  judge 
shall  appoint,  and  at  the  current  official  quotations. 

If  not  quoted  on  exchange  they  shall  be  sold  according  to  the  formal- 
ities prescribed  in  the  foregoing  articles  for  the  sale  of  real  property. 

ART.  2022.  After  the  sale  is  made  the  judge  shall,  under  his  liabil- 
ity, see  that  the  amount  received  at  said  sale  be  applied  as  stated  in  the 
petition  for  authorization  to  make  the  sale. 

ART.  2023.  The  amount  received  shall  be  delivered  to  the  tutor  or 
curator,  pending  its  application,  if  he  has  been  exempted  from  furnish- 
ing bond  or  if  he  has  furnished  bond  sufficient  to  secure  the  same. 
Otherwise  it  shall  be  deposited  in  the  public  establishment  in  which 
judicial  deposits  are  made. 

ART.  2024.  The  authority  to  settle  questions  out  of  court  relating 
to  the  rights  of  minors  or  incapacitated  persons  shall  be  requested  by 
the  same  persons  that  request  the  sale  of  property. 

The  reason  for  and  the  purpose  of  the  settlement  must  be  stated  in 
the  written  petition,  as  well  as  the  doubts  and  difficulties  of  the  busi- 
ness and  the  reasons  that  exist  for  believing  it  profitable  and  proper; 
the  petition  shall  also  be  accompanied  by  a  document  in  which  the 
basis  for  the  transaction  shall  be  set  forth. 

All  the  documents  and  data  necessary  for  the  purpose  of  forming  an 
exact  judgment  in  the  matter  shall  also  be  presented  with  the  petition. 

ART.  2025.  If  an  action  should  be  pending  with  reference  to  the 
right  to  be  settled  out  of  court,  the  documents  shall  be  filed  with  the 
record  thereof. 

ART.  2026.  If,  in  order  to  demonstrate  the  necessity  of  the  settle- 
ment, the  proof  of  some  fact  or  the  taking  of  certain  steps  should  be 
necessary  or  proper,  the  judge  shall  order  that  it  take  place  with  the 
citation  of  the  prmnotw  fiscal. 

ART.  2027.  After  the  provisions  of  the  foregoing  article  have  been 
observed,  the  record  shall  be  delivered  to  the  promotor  fiscal  in  order 
that  he  may  make  such  statements  as  he  may  deem  proper. 

ART.  2028.  After  the  record  has  been  returned  by  the  promotor  fiscal 
the  judge  shall  make  an  order  granting  or  denying  authority  for  the 


40f>  LAW    OF    CIVIL    PROCEDURE. 

settlement,  as  he  may  consider  best  for  the  interests  of  the  minor  or 
incapacitated  person. 

If  it  be  granted  he  shall  modify  or  approve  the  bases  submitted, 
ordering  that  an  authenticated  statement  of  the  proceedings,  with  the 
necessary  enclosures,  be  delivered  to  the  tutor  or  curator  for  the 
proper  effects. 

These  orders  may  be  appealed  from  for  review  and  for  a  stay  of 
proceedings. 

ART.  2029.  For  the  purpose  of  mortgaging  or  incumbering  real 
property  or  for  the  extinction  of  property  rights  belonging  to  minors 
or  incapacitated  persons,  the  formalities  shall  be  observed  which  are 
established  for  the  sale  of  property,  with  the  exception  of  those 
prescribed  for  public  sales. 

TITLE  XII. 

ADMINISTRATION    OF   PEOPEETY  OF   ABSENT  PEESONS    WHOSE  WHEEEABOUTS 

AEE  UNKNOWN.1 

ART.  2030.  When  the  whereabouts  of  a  person  who  has  absented 
himself  from  his  domicile  for  more  than  two  years  is  unknown,  leaving 
his  property  abandoned,  and  there  is  no  evidence  of  his  death,  any  of 
his  nearest  relatives,  who  would  be  heirs  ah  intestato,  may  request 
that  the  administration  of  said  property  be  transferred  to  them  under 
bond. 

ART.  2031.  The  person  who  presents  the  petition  mentioned  in  the 
foregoing  article  must  present  the  documents  which  prove  his  relation- 
ship with  the  absentee,  and  a  statement  of  the  property  whose  admin- 
istration he  requests,  with  a  report  of  the  income  received  or  which 
may  be  received  therefrom. 

He  shall  also  furnish  evidence  as  to  the  following  facts: 

1.  The  absence  and  unknown  whereabouts  of  the  person  referred  to, 
the  date  or  time  when  he  absented  himself,  and  the  time  when  last 
heard  from. 

2.  That  there  is  no  one  authorized  by  the  absentee  to  care  for  and 
administer  his  property. 

3.  That  the  petitioner  is  the  nearest  relative  of  the  absentee,  with  a 
statement,  in  a  proper  case,  of  those  who  possess  the  same  degree  of 
relationship. 

ART.  2032.  The  judge  shall  take  the  evidence  with  a  citation  of  the 
promoter  fiscal. 

This  evidence  must  be  given  by  at  least  three  witnesses  who  may 
have  been  friends  or  had  business  relations  with  the  absentee.  The 
court  clerk  shall  certify  that  he  is  acquainted  with  said  witnesses,  and 

1  The  Civil  Code  has  considerably  modified  the  provisions  of  this  title,  as  may  be 
observed  by  consulting  articles  181  to  186  and  others  thereof. 


LAW    OF    CIVIL    PROCEDURE.  407 

should  ho  not  know  them  t\\o  witnesses  for  identification  shall  be 
furnished. 

ART.  2033.  If  from  the  evidence  the  facts  mentioned  in  article  2031 
should  be  proven,  the  judge  shall  order  the  publication  of  two  edicts, 
each  at  an  interval  and  for  a  period  of  two  months,  calling  upon  the 
absentee,  and  those  who  believe  themselves  entitled  to  the  adminis- 
tration of  his  property,  should  the  absentee  not  appear,  to  present 
themselves. 

These  edicts  shall  be  published  at  the  place  of  the  last  domicile  of 
the  absentee,  and  in  the  place  where  the  property  is  situate,  and  shall 
be  inserted  in  the  Gai'ctn  of  the  general  government,  and  in  the  Boletin 
Oficlal  of  the  province,  should  there  be  one.  They  shall  also  be  inserted 
in  the  Gaceta  de  Madrid  should  the  judge  consider  it  proper. 

Said  edicts  shall  also  contain  the  names  of  those  who  have  requested 
the  administration  of  the  property,  their  relationship  with  the  absentee, 
and  shall  require  that  those  who  believe  themselves  to  have  a  better 
right,  appear  before  the  court  and  prove  the  same  with  the  proper 
documentary  evidence. 

ART.  2034.  After  the  expiration  of  the  period  fixed  in  the  second 
edict,  and  after  the  petitions  of  those  who  have  appeared  have  been 
attached  to  the  record,  it  shall  be  delivered  to  the  promoter  fiscal  for 
six  days  in  order  that  he  may  report  up<5n  the  propriety  of  granting 
the  administration  of  the  property  of  the  absentee  to  the  relatives,  as 

ell  as  upon  the  rights  of  the  claimants. 

The  PTC vnotor  fiscal  may  also  recommend  the  correction  of  any  error 

at  may  have  been  committed  in  the  course  of  the  proceedings,  in 
which  case  the  corrections  shall  first  be  made. 

ART.  2035.  When  but  one  relative  has  requested  the  administration 
and  the  promotor  fiscal  does  not  oppose  the  same,  the  judge  shall 
grant  it  without  further  proceedings,  should  he  deem  it  proper. 

The  same  shall  be  done  when  there  are  two  or  more  petitioners  who 
have  stated  their  agreement  which  person  or  persons  should  be  entrusted 
with  the  administration. 

ART.  2036.  With  the  exception  of  the  cases  mentioned  in  the  fore- 
going article,  the  judge  shall  call  a  meeting  of  the  claimants  within 
eight  days  in  order  that  they  may  agree  as  to  their  rights  and  which  of 
them  is  to  be  entrusted  with  the  administration. 

A  proper  record  of  the  result  of  said  meeting  shall  be  made  and 
signed  by  the  persons  present,  and  also  by  the  judge  and  the  court 
clerk. 

ART.  2037.  If  an  agreement  should  be  reached  at  the  meeting,  the 
judge  shall  order  that  it  be  executed,  provided  that  it  is  proven  that 
the  whereabouts  or  existence  of  the  absentee  is  unknown,  that  the 
property  is  abandoned,  and  that  the  persons  selected  to  take  charge  of 
the  administration  are  relatives  of  the  said  absentee. 


408  LAW    OF    CIVIL    PROCEDURE. 

AKT.  2038.  If  no  agreement  is  reached  at  the  meeting,  within  the 
three  following  days  the  judge  shall  decide  what  he  may  consider 
proper,  and  order,  in  a  proper  case,  that  the  administration  be  granted 
at  once  to  the  nearest  relative  or  relatives  named  by  himself,  without 
prejudice  to  the  rights  of  the  other  persons  interested,  which  they  may 
make  use  of  in  the  action  which  ma}7"  be  proper  in  view  of  the  amount 
of  the  property. 

This  decision  may  be  appealed  from  for  review  only. 

ART.  2039.  The  administrator  appointed  shall  furnish  bond  to  the 
satisfaction  of  the  judge,  in  amount  sufficient  to  cover  the  income  of 
the  property  for  five  years  at  least. 

This  bond  may  be  of  any  of  the  kinds  recognized  by  law,  with  the 
exception  of  a  personal  bond. 

In  order  to  fix  the  amount  of  the  bond  the  judge  may  order,  should 
he  deem  it  proper,  that  the  amount  of  its  income  be  appraised  by  an 
expert  of  his  own  appointment. 

ART.  2040.  After  the  bond  has  been  furnished  by  the  administrator, 
the  judge  shall  order  that  he  be  given  the  proper  certificate  of  appoint- 
ment and  that  the  property  be  delivered  to  him  under  an  inventory 
which  shall  be  prepared  by  the  court  clerk,  with  citation  of  thepromotor 
fiscal  and  the  other  relatives  of  the  same  degree  of  relationship,  who 
are  not  administrators. 

At  the  same  time  the  judge  shall  order  that  a  memorandum  be  made 
in  the  property  register  of  the  absence  and  unknown  whereabouts •«.  i 
the  owner  of  the  real  property  and  of  the  appointment  of  an  adminis- 
trator, the  proper  orders  being  issued  therefor. 

ART.  2041.  The  administrator  shall  be  entitled  to  the  compensation 
which  the  judge  may  determine,  which  can  not  exceed  ten  per  cent  of 
the  income  from  the  property;  and  he  shall  be  obliged  to  keep  an 
account,  properly  vouched,  of  the  receipts  and  expenses,  for  submis- 
sion to  the  owner  thereof  when  he  presents  himself,  or  to  his  heirs  or 
successors  in  interest. 

ART.  2042.  In  the  following  cases  the  proceedings  shall  be  discon- 
tinued, whatever  be  their  stage: 

1.  When  the  absentee  appears  in  person  or  by  means  of  a  duly 
empowered  agent. 

2.  When  positive  advice  is  received  of  the  existence  and  where- 
abouts of  the  owner. 

3.  When  the  decease  of  the  absentee  is  proven  and  his  testamentary 
heirs  or  intestate  heirs  appear. 

4.  When  a  third  person  appears  and  presents  proper  documentaiy 
evidence  that  he  has  secured,  by  purchase  or  otherwise,  the  property  of 
the  absentee. 

In  such  cases  if  an  administrator  had  been  appointed  he  shall  cease 
performing  his  duties,  placing  the  property  at  the  disposal  of  those 
who  are  entitled  thereto. 


LAW    OF    CIVIL    PROCEDURE.  409 

ART.  2043.  If  the  absentee  should  have  made  a  will,  and  the  testa- 
mentary heirs  present  an  authentic  copy  thereof,  they  may  request 
the  administration  of  the  property  according*  to  the  provisions  of  the 
foregoing  articles. 

ART.  2044.  If  the  property  of  an  absentee  whose  whereabouts  is 
unknown  has  been  abandoned  for  more  than  two  years,  the  judge  may, 
at  the  instance  of  the  protnotor  fiscal,  or  of  any  other  person,  even 
though  not  a  relative,  order  that  such  measures  be  taken  as  may  be 
considered  necessary  for  the  security  and  temporary  administration  of 
the  property,  after  evidence  of  the  facts  mentioned  in  numbers  1  and 
2  of  article  2031  has  been  received,  and  without  prejudice  to  the  pro- 
cedure established  in  this  title,  to  cite  the  relatives  to  appear  and 
provide  for  the  administration  of  said  propert^v. 

ART.  2045.  If  a  legitimate  party  should  make  any  opposition  to  the 
proceedings  prescribed  in  this  title,  based  upon  the  statement  that  the 
same  are  improper,  it  shall  be  heard  and  determined  according  to  the 
procedure  established  for  incidental  issues  in  Title  III  of  Book  II. 

Until  such  opposition  is  heard  and  determined  the  judge  may  adopt 
such  measures  as  he  may  consider  necessary  for  the  security  and 
administration  of  the  property,  should  the  same  have  been  abandoned. 

ART.  2046.  When,  on  account  of  the  presumed  death  of  an  absentee, 
a  testamentary  or  intestate  succession  may  be  opened,  as  soon  as  such 
fact  is  determined  in  the  proper  proceeding,  the  procedure  prescribed 
for  testamentary  or  intestate  proceedings,  as  the  case  may  be,  shall  be 
observed. 


TITLE  XIII. 

VOLUNTARY  JUDICIAL  PUBLIC  SALES. 


ART.  2047.  Any  person  requesting  that  a  judicial  public  sale  be 
made  shall,  by  presenting  the  proper  documents  therefor,  prove  the 
following: 

1.  That  he  has  the  legal  capacity  to  make  the  proposed  contract. 

2.  That  he  can  dispose  of  the  thing  or  object  at  public  sale  as  pro- 
posed. 

ART.  2048.  With  the  petition  in  which  a  public  sale  is  requested 
shall  be  presented  the  document  of  conditions  according  to  which  the 
same  is  to  be  held. 

ART.  2049.  After  the  facts  mentioned  in  article  2047  have  been 
proven,  the  judge  shall  order  the  publication  of  the  notice  of  public 
sale,  in  the  manner  and  under  the  conditions  proposed  by  the  peti- 
tioner; he  shall  set  a  day  and  hour  for  the  sale;  he  shall  order  that 
edicts  be  posted  in  the  customary  places  and  in  the  town  in  which  the 
property  is  situate  or  in  which  the  contract  is  to  be  executed,  and  that 
they  be  published  in  the  newspapers  designated  by  the  petitioner. 


410  LAW    OF    CIVIL    PROCEDURE. 

The  edicts  shall  state  that  the  document  of  conditions  for  the  sale 
and  the  title  deed  to  the  property  are  on  file  in  the  court  clerk's  office 
for  the  information  of  those  who  may  be  interested  in  the  public  sale. 

ART.  2050.  If  any  proposition  is  made,  which  is  admissible  by  reason 
of  its  being  in  conformity  with  the  conditions  fixed  in  the  document  of 
conditions  of  sale,  the  judge  shall  admit  the  same,  as  well  as  subsequent 
higher  bids.  At  the  close  of  the  bidding  the  sale  shall  be  made  to  the 
only  or  the  best  bidder,  unless  the  petitioner  has  expressly  reserved 
the  right  of  approval,  in  which  case  the  record  shall  be  delivered  to 
him,  so  that  he  may,  within  three  days,  make  such  request  as  he  may 
deem  proper. 

The  same  shall  be  done  if  any  bidder  has  made  an  offer  upon  the 
condition  that  some  of  the  conditions  be  modified. 

AKT.  2051.  If  the  petitioner  should  accept  the  proposition  referred 
to  in  the  second  paragraph  of  the  foregoing  article,  a  decision  shall  be 
rendered  adjudging  the  sale  to  the  person  making  such  proposition, 
and  the  same  shall  be  carried  into  effect. 

If  said  proposition  is  not  accepted,  the  petitioner  shall  state  whether 
or  not  he  approves  the  sale,  or  whether  he  desires  a  new  sale,  under  the 
same  conditions  or  under  such  conditions  as  he  may  designate,  or 
whether  he  desires  to  abandon  his  intention. 

ART.  2052.  When  a  new  public  sale  is  to  take  place,  the  notices  of 
sale  shall  state  that  all  offers  shall  be  necessarily  admitted,  provided 
they  cover  the  minimum  amount  fixed  by  the  petitioner. 

ART.  2053.  If  in  the  second  public  sale  there  be  no  bidder,  the  inter- 
ested party  shall  be  at  liberty  to  do  what  he  may  deem  most  advisable, 
provided  that  no  third  public  sale  shall  be  attempted  until  after  the 
expiration  of  one  year,  after  which  time  he  may  petition  that  new  pro- 
ceedings be  instituted  for  the  same  purpose. 

ART.  2054.  The  questions  which  may  arise  during  the  proceedings 
shall  be  heard  and  determined  according  to  the  procedure  prescribed 
for  incidental  issues. 

TITLE  XIV. 

JUDICIAL  POSSESSION  IN  CASES  IN  WHICH  SUMMARY  PROCEEDINGS  TO  ACQUIRE 

POSSESSION  DO  NOT  LIE. 

ART.  2055.  In  order  that  judicial  possession  of  an  estate  or  estates 
which  have  not  been  acquired  by  inheritance  may  be  decreed,  the 
person  desiring  the  same  shall  request  it  of  the  judge,  attaching  to  his 
petition : 

1.  The  title  upon  which  he  bases  his  request,  recorded  in  the  prop- 
erty register. 

2.  A  certificate  issued  by  the  person  in  charge  of  said  registry,  which 
shows  that  on  said  date  the  petitioner  has,  with  regard  to  the  estate  or 


LAW    OF    CIVIL    PROCEDURE.  411 

•-fates,  as  set  forth  in  the  title  which  he  presents,  and  the  possession 
of  which  he  demands,  the  character  under  which  he  requests  it. 

ART.  2056.  The  judge  shall  examine  the  title  presented,  and  if  he 
finds  it  sufficient,  he  shall  render  decision  ordering  that  possession  be 
given  without  prejudice  to  a  third  person  having  a  better  right  thereto. 

ART.  2057.  Possession  shall  be  given  by  a  bailiff  (alguacil)  of  the 
court,  aided  by  the  clerk,  to  any  of  the  properties  involved  and  in  the 
name  of  the  others. 

ART.  2058.  The  person  obtaining  possession  may  designate  the  les- 
sees, tenants,  or  managers  who  are  to  be  required  by  the  court  clerk 
to  recognize  him  as  the  possessor  of  the  property. 

Said  official  shall  make  a  memorandum  of  the  act  of  vesting  posses- 
sion and  of  the  proceedings  performed  by  him. 

ART.  2059.  If  the  person  obtaining  possession  should  so  request,  an 
authenticated  copy  of  the  order  ordering  possession  shall  be  given 
him  and  of  the  proceedings  had  in  its  execution. 

In  all  cases  the  evidence  of  the  title  shall  be  returned  to  the  person 
presenting  it,  a  receipt  and  a  memorandum  thereof  being  attached  to 
the  record. 


TITLE  XV. 

SURVEYS  AND  DEMARCATIONS. 


ART.  2060.  The  survey  and  demarcation  of  a  piece  of  land  may  be 
iv< [nested  not  only  by  the  owner  thereof,  but  also  by  any  person  hav- 
ing a  property  right  therein  for  its  use  or  enjoyment. 

The  petition  shall  state  whether  the  survey  is  to  be  made  of  the 
entire  area  within  the  perimeter  of  the  land,  or  only  in  the  part  which 
borders  upon  some  determined  estate,  and  shall  designate  the  names 
and  residence  of  the  persons  to  be  cited  to  appear  at  the  survey,  or 
thai:  such  persons  are  unknown  to  the  petitioner. 

ART.  2061.  The  judge  shall  set  a  day  and  hour  upon  which  the 
survey  is  to  begin,  notice  being  given  long  enough  in  advance  so  that 
all  persons  interested  may  be  present,  who  shall  previously  be  legally 
cited  to  appear. 

Unknown  persons,  and  those  whose  residence  is  unknown,  shall  be 
cited  by  means  of  edicts  which  shall  be  posted  in  the  customary  places 
in  the  seat  of  the  district,  of  the  town  in  which  the  estate  is  situate, 
and  of  that  in  which  the  person  cited  lately  resided. 

ART.  2062.  If  the  judge  can  not  be  present  at  the  survey,  he  shall 
commission  the  municipal  judge  of  the  district  in  which  the  property 
is  situate  to  be  present. 

ART.  2063.  Neither  the  survey  nor  the  demarcation  shall  be  sus- 
pended, if  the  latter  was  requested,  on  account  of  the  nonappearance 
of  an}T  of  the  owners  of  the  adjoining  estates,  but  they  shall  have  the 


412  LAW    OF    CIVIL    PROCEDURE. 

right  to  institute  such  declarator}'  action  as  may  be  proper,  for  such 
possession  or  ownership  of  which  they  may  consider  themselves  to 
have  been  dispossessed  by  reason  of  said  survey. 

ART.  2064.  The  person  who  may  have  requested  the  survey,  as  well 
as  the  others  present  at  the  proceedings,  may  present  the  titles  of  their 
estates  and  make  such  claims  as  they  consider  proper,  either  in  person 
or  through  an  attorney  appointed  for  the  purpose. 

If  one  or  more  of  the  parties  request  it,  experts  appointed  by  them- 
selves, or  by  the  judge,  who  may  be  familiar  with  the  land  and  who 
can  furnish  the  information  necessary  for  the  survey,  may  be  present 
thereat. 

ART.  2065.  If  the  survey  and  the  demarcation,  in  a  proper  case,  is 
made  without  opposition,  a  separate  statement  shall  be  made  of  all 
the  circumstances  necessary  to  locate  the  dividing  line  of  the  estates, 
the  monuments  placed  or  ordered  to  be  placed,  their  direction  and 
distance  from  each  other,  as  also  all  important  questions  which  may 
have  arisen  and  their  decision.  This  statement  shall  be  signed  by  all 
the  parties  present. 

ART.  2066.  If  the  proceedings  can  not  be  concluded  in  one  day,  they 
shall  be  suspended  to  be  continued  at  the  earliest  possible  day,  which 
fact  shall  be  stated  in  the  statement. 

ART.  2067.  Copies  of  the  statement  shall  be  given  to  the  interested 
parties  who  request  the  same,  and  it  shall  be  filed  in  the  protocol  of 
the  notarial  office  of  the  court  clerk  who  authorized  it,  if  he  is  a 
notary;  otherwise  in  that  of  the  town  or  notarial  district  in  which  the 
property  surveyed  is  situate,  and  should  there  be  several,  in  that 
selected  by  the  judge. 

ART.  2068.  The  court  clerk  shall  draft  a  memorandum  in  the  record 
to  the  effect  that  the  survey  and  demarcation  were  performed,  stating 
the  notarial  office  where  the  statement  is  filed,  a  receipt  for  which  shall 
be  signed  by  the  notary  in  the  statement  itself. 

ART.  2069.  If,  before  beginning  the  survey,  objections  are  raised 
by  the  owner  of  any  adjacent  land,  the  survey  of  that  part  of  the  land 
which  adjoins  that  of  the  opposing  party  shall  be  suspended,  the  par- 
ties reserving  their  rights,  which  they  may  exercise  in  the  declaratory 
action  which  may  be  proper. 

The  same  shall  be  done  if  any  objection  is  raised  during  the  pro- 
ceedings, if  the  parties  in  interest  can  not  at  once  agree  upon  the  mat- 
ter in  dispute. 

In  either  case  the  survey  of  the  remainder  of  the  estate  may  be  con- 
tinued at  the  request  of  the  petitioner,  if  the  other  adjoining  owners 
do  not  object  thereto. 


FART  SECOND. 

ACTS  OF  VOLUNTARY  JURISDICTION  IN  COMMERCIAL  MATTERS. 

TITLE  I. 

GENERAL  PROVISIONS. 

Airr.  2070.  Proceedings  for  the  purpose  of  establishing  facts  of 
interest  to  persons  who  request  the  taking  of  evidence  thereupon  in 
commercial  matters  shall  be  had  before  courts  of  first  instance. 

ART.  2071.  Notwithstanding  the  provisions  of  the  foregoing  article, 
the  proceedings  to  which  it  refers  may  be  instituted  before  municipal 
courts  in  towns  which  are  not  the  seat  of  a  judicial  district,  or  before 
Spanish  consuls  in  foreign  countries  when  the  urgency  of  the  business 
requires  it,  or  when  means  of  proof  exist,  or  the  merchandise  or  goods 
are.  or  the  facts  occurred  at  the  place  or  within  the  jurisdiction  of  the 
said  courts  or  consulates. 

In  such  case  the  municipal  judge  or  the  consul  to  whom  application 
is  made  shall  issue  an  order  stating  the  attending  circumstance  by 
which  he  becomes  vested  with  jurisdiction  in  the  matter. 

ART.  2072.  If  the  proceedings  referred  to  in  the  two  foregoing 
articles  be  instituted  within  Spanish  territory,  they  shall  be  subject  to 
the  provisions  prescribed  for  each  case  in  the  Code  of  Commerce  or  in 
this  law. 

If  no  special  rules  have  been  established  for  the  matter  involved, 
in  addition  to  the  general  provisions  prescribed  in  the  first  part  of  this 
book  which  may  be  applicable  thereto,  the  following  rules  shall  be 
observed  in  the  proceedings: 

1.  If  there  are  third  persons  who  may  be  prejudiced  by  the  pro- 
ceedings, the}-  must  be  cited  to  appear  thereat  if  they  so  desire,  with- 
out prejudice  to  the  right  of  any  one  else  attending  who  believes  that 
he  is  interested  in  the  subject  which  is  being  heard. 

The  judge  shall,  without  hearing  any  arguments  (de  piano),  dismiss 
all  requests  presented  by  persons  who  are  known  to  have  no  interest 
in  the  matter. 

2.  In  cases  in  which  the  proceedings  are  liable  to  affect  public  inter- 
ests, or  present  or  absent  persons  who  enjoy  special  protection  of  law, 
or  unknown  persons,  the  promoter  fiscal  in  the  seats  of  judicial  districts 
and  the  municipal  fiscales  in  the  other  towns  shall  be  cited  to  appear. 

3.  The  clerks  of  courts  in  the  courts  of  first  instance  and  the  secre- 
taries of  municipal  courts  shall  certify  to  the  identity  of  the  persons 

413 


414  LAW    OF    CIVIL    PROCEDURE. 

who  request  the  intervention  of  the  respective  judges,  and  to  that  of 
the  witnesses,  when  evidence  is  taken,  in  a  proper  case. 

When  such  persons  are  unknown  they  shall  prove  their  identity  by 
documentary  evidence  or  by  the  testimony  of  persons  who  know  them. 
In  case  there  is  no  way  to  prove  their  identity,  the  fact  shall  be  stated 
in  the  record. 

4.  The  intervention  of  third  persons  who  may  be  cited  to  appear, 
that  of  the  promotores  fiscales^  and  in  a  proper  case,  that  of  the  munic- 
ipal fiscales,  shall  be  limited  to  the  acquisition  of  information  as  to  the 
personality  of  the  parties  to  the  proceedings,  and  as  to  their  legal 
capacity  to  appear  therein.      For  this  purpose  the  record  shall  be 
delivered  to  them  when  completed,  before  a  judicial  decision  is  ren- 
dered, so  that  they  may  allege  whatever  they  may  deem  proper  in  the 
matter.     Any  other  claim  made  by  them  in  any  matter  other  than  those 
aflecting  the  indentity  or  legal  capacity  of  said  parties  shall  only  be 
considered  as  a  reservation  by  them  of  the  right  to  enforce  such  claim 
at  the  times  and  in  such  manner  as  they  may  deem  proper. 

5.  If  the  claims  made  by  third  persons,  by  the  promotor  fiscal  or 
municipal  jfom^-s',  relate  to  defects  which  are  susceptible  of  correction, 
the  judge  shall  order  what  may  be  necessary  to  conclude  the  proceed- 
ings as  soon  as  possible. 

6.  The  judge  in  view  of  all  the  proceedings  had  shall  decide  what  he 
ma}^  consider  proper,  and  shall  order  the  record  filed,  the  interested 
parties  being  given  certified  copies  of  such  parts  thereof  as  they  may 
request. 

7.  When,  by  virtue  of  the  provisions  of  article  2071,  the  proceedings 
have  been  had  before  a  municipal  judge,  after  he  shall  have  performed 
the  most  essential  and  urgent  parts  thereof,  he  shall  transmit  the  same 
to  the  judge  of  first  instance,  and  the  latter  shall  conclude  them  in 
the  proper  manner,  immediately  complying  with  the  provisions  of  the 
foregoing  rule. 

ART.  2073.  Appeals  interposed  by  the  persons  who  instituted  the 
proceedings  shall  be  admitted  for  review  and  a  stay  of  proceedings, 
those  interposed  by  others  who  subsequently  appear  in  the  action  may 
be  appealed  from  for  review  only. 

ART.  2074.  When  an  appeal  has  been  interposed  and  admitted,  the 
record  shall  be  forwarded  within  two  days,  after  summoning  the  per- 
sons interested  to  appear  within  eight  days,  if  it  be  before  a  judge  of 
first  instance,  and  ten  days,  if  before  the  audencia. 

ART.  2075.  In  appeals  from  decisions  rendered  by  municipal  juc 
as  soon  as  the  record  is  received  by  the  judge  of  first  instance,  if  th( 
appellant  should  present  himself  before  the  expiration  of  the  peri( 
fixed  in  the  summons,  the  judge  shall  order  the  persons  interested 
be  called  to  appear  before  him  within  three  days,  when  they  shall 
heard,  the  proper  minutes  being  made  of  what  they  may  declare. 


: 


LAW    OF    CIVIL    PKOCEDURE.  415 

Within  three  days  after  such  appearance  is  entered  the  judge  shall 
render  such  decision  as  he  may  consider  proper. 

Appeals  to  the  audiencia  shall  be  heard  and  determined  according  to 
e  procedure  prescribed  for  incidental  issues. 

ART.  2076.  Should  the  appellant  not  appear  within  the  period  desig- 
nated in  the  summons,  the  provisions  established  in  articles  839  et  seq. 
shall  be  observed. 

ART.  2077.  No  appeal  shall  lie  from  decisions  rendered  in  second 
instance,  but  the  interested  parties  shall  reserve  the  right  to  enforce 
their  claim  in  the  action  which  may  be  proper,  according  to  the  amount 
involved. 

ART.  2078.  The  examinations  and  appraisements  shall  be  made  by 
licensed  experts,  provided  there  are  any  at  the  place  where  the*  pro- 
ceedings are  pending,  and  in  their  absence,  by  persons  experienced  in 
such  matters. 

An  exception  will  be  made  if  the  party  in  interest  at  whose  instance 
e  examination  or  appraisement  is  made,  asks  that  it  be  done  at  his 
n  expense  by  a  licensed  expert. 

Whenever,  owing  to  a  disagreement  between  two  experts,  it  is  nec- 
ary  to  appoint  a  third  one  to  settle  the  difference,  the  third  one 
all  be  selected  by  lot,  taking  into  account  the  provisions  of  article  615. 
ART.  2079.  When,  according  to  the  provisions  of  article  2071,  Span- 
fa  consuls  take  cognizance  of  any  act  of  voluntaiy  jurisdiction,  they 
all  conform  as  far  as  possible  to  the  provisions  of  this  law. 

TITLE  II. 

THE  DEPOSIT  AND  EXAMINATION  OF  COMMERCIAL  EFFECTS. 

ART.  2080.  If  as  a  result  of  the  provisions  of  articles  121, 122,  218, 
!2,  365,  674,  745,  777,  781,  and  988  of  the  Code  of  Commerce,  or  for 
other  similar  cause,  it  becomes  necessary  to  make  a  deposit  of 
mnnercial  effects,  the  person  instituting  proceedings  shall  present  a 

•itten  request  therefor  to  the  judge,  containing  an  itemized  statement 
the  goods  sought  to  be  deposited,  and  designating  the  person  who 

to  be  the  depositary  and  who  must  be  a  registered  merchant,  should 
icre  be  any  at  the  place,  and  in  his  absence  some  taxpayer  who  pays 
ixes  sufficient  in  the  opinion  of  the  judge  to  be  a  sufficient  guaranty, 
iking  into  account  the  value  of  the  deposit  and  the  conditions  of  the 
lace. 

In  any  case  it  is  the  privilege  of  the  judge  to  weigh  the  guaranties 

fered  by  the  depositary  designated  by  the  person  who  requests  the 
iposit,  and  if  he  concludes  that  another  person  should  be  appointed 
shall  make  such  appointment,  subject  to  the  provisions  of  this  article. 

ART.  2081.  If  the  deposit  is  requested  in  view  of  the  contingency 


416  LAW    OF    CIVIL    PROCEDURE. 

provided  for  in  article  777  of  the  above-mentioned  Code,  the  person 
requesting  the  same  shall  also  request  an  expert  examination  of  the 
vessel,  and  shall  furnish  evidence  to  prove  that  no  other  vessel  can  be 
found  in  any  port  within  160  kilometers  in  which  to  ship  said  mer- 
chandise. 

This  fact  may  also  be  proven  by  documentary  evidence. 

ART.  2082.  The  court  clerk  shall  make  a  record  of  the  deposit,  which 
shall  state  the  quantity  and  condition  of  the  goods  deposited,  and  in 
case  there  should  be  any  difference  between  said  record  and  the  written 
statement  made  by  the  person  requesting  the  deposit,  such  difference 
shall  be  noted. 

ART.  2083.  If  the  court  clerk  or  the  depositary  should  not  agree  to 
the  statement  of  the  quantity  or  quality  of  the  goods  enumerated  by 
the  person  who  requested  the  deposit,  and  if  the  latter  should  not  con- 
sent to  a  correction  thereof,  in  case  of  a  difference  in  quantity,  tne 
clerk  shall  make  a  minute  recount  of  the  goods  in  the  presence  of  the 
depositor  and  the  depositary.  If  the  difference  should  relate  to  quality, 
the  judge  shall  appoint  an  expert  to  classify  the  same,  making  a  proper 
record  thereof. 

This  expert  shall  be  chosen  by  lot  from  among  the  members  of  the 
brokers'  association,  should  there  be  any,  and  in  its  absence  from 
among  the  registered  merchants  dealing  in  merchandise  like  that  to 
which  the  goods  belong,  and  they  can  not  be  challenged. 

ART.  2084.  In  the  case  mentioned  in  the  foregoing  article  the  judge 
shall  temporarily  provide  for  the  custody  and  preservation  of  the  goods 
which  are  to  be  deposited. 

ART.  2085.  Should  it  become  necessary  for  the  judge  to  order  the 
sale  of  some  of  the  deposited  merchandise,  in  order  to  meet  the  expense 
of  the  deposit  and  preservation,  the  sale  shall  be  made  by  public  auc- 
tion, after  an  appraisement  by  an  expert  appointed  by  the  owner  of 
the  merchandise,  should  he  be  present,  or  by  the  representative  of  the 
department  of  public  prosecution,  should  the  owner  be  absent,  and  by 
another  expert  appointed  by  the  judge.  Notice  of  the  sale  shall  be 
announced  for  a  period  of  from  eight  to  fifteen  days  by  edicts,  which 
shall  be  posted  on  the  bulletin  boards  of  the  court,  and  may  be 
inserted  in  the  Boletin  Oficial  of  the  province,  where  there  is  one,  or 
in  the  Gaceta  of  the  general  government,  at  the  discretion  of  the  judge, 
according  to  the  value  of  the  merchandise. 

If  the  owner  of  the  merchandise  should  be  present  and  consents  that 
the  judge  appoint  but  one  expert,  this  shall  be  done.  If  the  owner 
should  decide  to  appoint  one,  and  his  expert  can  not  agree  with  the 
expert  appointed  by  the  judge,  a  third  shall  be  selected  by  lot. 

ART.  2086.  If  there  be  no  bidder  at  the  public  sale,  or  the  bids 
offered  are  not  equal  to  two-thirds  of  the  appraised  value,  a  second 
public  sale  shall  be  ordered,  and  even  a  third,  if  necessary,  within  an 


LAW    OF    CIVIL    PROCEDURE.  417 

equal  period  of  time,  with  a  reduction  of  twenty  per  cent  in  each  sale 
from  the  amount  which  served  as  a  basis  for  the  previous  sale. 

ART.  2087.  In  case  that  the  doubts  and  contentions  referred  to  in 
article  218  of  the  Code  should  arise,  the  interested  persons,  should 
they  not  agree  upon  the  appointment  of  experts,  shall  apply  to  the 
judge  to  appoint  them.  When  this  is  done,  the  experts  shall  present 
their  opinion,  and  if  they  do  not  agree,  the  judge  shall  appoint  by  lot 
a  third. 

If  the  interested  persons,  notwithstanding  the  expert  examination, 
can  not  harmonize  their  differences,  the  deposit  prescribed  in  the  said 
article  shall  be  ordered. 

ART.  2088.  When  it  is  necessary  to  secure  a  statement  of  the  condi- 
tion, quality,  or  quantity  of  the  goods  received,  or  of  the  packages  in 
which  they  are  contained,  according  to  the  provisions  prescribed  in 
articles  219,  361,  and  the  second  paragraph  of  article  370  of  the  Code, 
and  in  other  similar  cases,  the  person  interested  shall  apply  to  the 
judge,  requesting  him  to  have  a  record  thereof  made,  and,  if  necessary, 
to  appoint  an  expert  to  examine  the  merchandise  or  packages. 

Should  the  persons  interested  agree  that  each  shall  appoint  an  expert, 
they  shall  so  request,  and  in  case  of  disagreement  a  third  shall  be 
selected  by  lot. 

TITLE  III. 

ATTACHMENT  AND  TEMPORARY  DEPOSIT  OF  THE  VALUE  OF  BILLS  OF  EXCHANGE. 

ART.  2089.  In  the  cases  in  which,  according  to  the  provisions  of 
articles  496  and  507  of  the  Code  of  Commerce,  it  is  necessary  to  attach 
or  order  the  temporary  deposit  of  the  value  of  a  bill  of  exchange,  the 
person  requesting  the  same  shall  present  a  written  petition  therefor 
to  the  judge. 

ART.  2090.  The  judge,  in  view  of  the  petition,  shall  order  that  the 
proper  person  be  required  to  deposit  the  value  of  the  bill  of  exchange. 
If  no  agreement  is  reached  between  the  parties,  this  deposit  shall  be 
made  in  the  public  establishment  provided  therefor;  and  if  this  can  not 
be  done,  with  a  registered  merchant  of  recognized  responsibility,  or, 
in  his  absence,  with  some  person  having  the  latter  qualification. 

ART.  2091.  After  the  attachment  or  deposit  has  taken  place,  the 
judge  shall  set  a  reasonable  period  within  which  the  petitioner  shall 
present  the  duplicate  bill  of  exchange,  or  request  in  a  proper  action 
the  definite  attachment  of  the  value  thereof,  and  he  shall  be  admon- 
ished that  if  said  action  is  not  instituted  within  said  period,  the 
attachment  or  temporary  deposit  shall  be  vacated. 

This  period  shall  be  determined,  taking  into  account  the  distance 
and  facility  of  communication  which  exist  with  the  place  of  issue  of 
said  bill  of  exchange,  and  may  be  extended  for  just  cause,  in  the 
opinion  of  the  judge. 
2901 27 


418  LAW    OF    CIVIL    PROCEDURE. 

TITLE  IV. 

CLASSIFICATION    OF    AVERAGES  AND     LIQUID ATION     OF    GROSS    AVERAGE    AND 

CONTRIBUTION  THERETO. 

ART.  2092.  When  it  becomes  necessary  to  furnish  the  proof  men- 
tioned in  article  945  of  the  Code  of  the  losses  suffered  and  the  expenses 
incurred,  which  constitute  the  common  or  gross  average,  the  captain 
of  the  vessel,  within  a  period  of  twenty-four  hours  after  arriving  at 
the  port  of  discharge,  fixed  in  article  670  of  said  Code,  shall  present  to 
the  judge  a  written  statement  giving  a  brief  account  of  all  that  occurred 
during  the  voyage,  according  to  the  log  book,  and  shall  request  per- 
mission to  open  the  hatches,  designating  for  this  purpose  the  expert 
selected  by  him  to  assist  in  the  operation. 

A  statement  of  all  proceedings  had  at  his  instance  at  other  ports  of 
call,  together  with  the  log  book,  shall  be  presented  with  the  said 
statement. 

ART.  2093.  After  the  statement  mentioned  in  the  foregoing  article 
is  presented,  the  judge  shall  on  the  same  day,  if  possible,  after  citing 
and  hearing  the  parties  in  interest  or  their  consignees,  receive  the 
declarations  of  as  many  of  the  sailors  and  passengers  as  he  may  con- 
sider necessary,  with  reference  to  the  facts  alleged  by  the  captain  in  his 
statement.  After  such  testimony  is  received  he  shall  give  permission 
to  open  the  hatches. 

This  shall  be  performed  in  the  manner  prescribed  in  article  2132. 

ART.  2094.  After  the  hatches  have  been  opened  and  the  condition  of 
the  cargo  is  proven,  in  order  to  proceed  to  the  classification  and  exami- 
nation of  the  damages  and  the  amount  thereof,  the  judge  shall  order 
that  the  captain  of  the  vessel  and  the  interested  persons  or  their  con- 
signees be  required  to  select  experts  within  twenty-four  hours,  under 
the  admonition  that  if  such  selection  is  not  made,  said  experts  shall  be 
appointed  ex  officio  by  the  judge. 

The  captain  shall  name  an  expert  for  each  kind  of  goods  to  be  exam- 
ined, the  interested  persons  or  the  consignees  shall  appoint  another, 
and  the  judge  shall  select  a  third  by  lot  in  case  of  disagreement. 

ART.  2095.  After  the  experts  are  appointed  or  designated  ex  offido, 
as  the  case  may  be,  they  shall  accept  and  take  oath  for  the  faithful 
performance  of  their  duties  in  the  manner  prescribed  in  article  947  of 
the  Code,  and  the  judge  shall  fix  a  brief  period  within  which  they  are 
to  present  their  report. 

ART.  2096.  The  experts  shall  classify  the  averages  and  shall  indicate 
with  the  greatest  possible  precision : 

1.  The  simple  or  particular  averages. 

2.  The  gross  or  common  averages. 


LAW    OF    CIVIL    PROCEDURE.  419 

ART.  2097.  After  the  experts  have  presented  their  report  it  shall  be 
subject  to  examination  in  the  clerk's  office  for  a  period  of  three  days, 
during  which  time  the  persons  interested  may  appear  before  the  clerk 
and  give  the  reasons  they  may  have  for  not  agreeing  thereto. 

ART.  2098.  If  any  of  the  parties  should  not  agree  to  the  report  of 
the  experts,  the  judge  shall,  on  the  day  following  the  period  pre- 
scribed in  the  foregoing  article,  call  a  meeting  of  the  interested  parties 
for  the  next  day.  In  such  case  the  evidence  offered  shall  be  received 
and  a  record  of  the  entire  testimony  be  made. 

ART.  2099.  Within  two  days  the  judge  shall  render  a  decision  order- 
ing whatever  he  may  consider  proper. 

This  decision  may  be  appealed  from  for  review  only. 

ART.  2100.  When  all  of  the  interested  parties  have  agreed  to  the 
expert  report  as  to  the  liquidation  of  the  averages  or  the  decision 
mentioned  in  the  foregoing  article  has  been  rendered,  the  judge  shall 
order  that  the  same  experts,  within  the  period  he  may  fix,  make  a 
statement  of  account  and  of  the  basis  of  settlement  of  the  gross  and 
common  averages. 

ART.  2101.  In  making  up  this  account  the  experts  shall  prepare  four 
statements: 

1.  The  damages  and  expenses  considered  as  common  averages  or  the 
sum  of  the  averages. 

2.  The  goods  subject  to  contribution  for  the  common  averages  or 
for  the  sum  of  the  averages  to  be  imposed. 

3.  The  distribution  of  the  sum  of  the  damages  among  the  goods 
subject  to  contribution. 

4.  The  cash  contributions  and  reimbursements. 

ART.  2102.  Both  in  the  case  of  the  foregoing  article  as  well  as  in  the 
case  of  article  2095,  should  the  experts  not  perform  their  duty  within 
the  period  fixed,  the  judge  shall  ex  officio  compel  them  to  do  so. 

ART.  2103.  As  soon  as  the  experts  shall  have  presented  the  four 
statements  referred  to  in  article  2101,  they  shall  be  placed  in  the  office 
of  the  clerk  for  examination  for  a  period  of  six  days,  for  the  purposes 
mentioned  in  articles  2097  et  seq. 

ART.  2104.  Should  all  of  the  interested  parties  consent  to  said  state- 
ments, the  judge  shall  approve  the  distribution.  If  the  meeting  pre- 
scribed in  article  2098  has  been  held,  the  judge  shall,  within  three  days, 
render  a  decision  approving  the  distribution  as  recommended  by  the 
experts  or  with  such  modifications  as  he  ma}7  consider  proper. 

This  decision  may  be  appealed  from  for  review  and  for  a  stay  of 
proceedings. 

ART.  2105.  If  the  captain  of  the  vessel  does  not  comply  with  the 
duty  imposed  upon  him  by  article  962  of  the  Code  to  enforce  the  dis- 
tribution, the  owners  of  the  damaged  goods  may  apply  to  the  judge  to 
compel  him  to  do  so. 


420  LAW    OF    CIVIL    PROCEDURE. 

ART.  2106.  In  case  the  owners  of  the  damaged  goods  make  the  appli- 
cation mentioned  in  the  foregoing  article,  the  judge  shall  order  that 
the  captain  be  required  to  enforce  the  distribution  within  such  brief 
period  as  he  may  designate  under  the  admonition  that  the  captain  will 
become  liable  for  his  tardiness  or  negligence. 

ART.  2107.  When  the  contributors  do  not  settle  their  respective 
quotas  on  or  before  the  third  day,  if  the  captain  of  the  vessel,  after 
the  distribution  has  been  approved,  should  make  use  of  the  right 
granted  him  by  article  963  of  the  Code,  the  deposit  and  public  sale  of 
so  much  of  the  saved  goods  as  may  be  necessary  to  cover  said  quotas 
may  be  proceeded  with  at  the  instance  of  the  captain. 

This  public  sale  shall  be  held  in  the  manner  prescribed  in  articles 
2085  and  2086. 

TITLE  Y. 

DISCHARGE,  ABANDONMENT  AND  INTERVENTION  OF  MERCHANDISE  AND  BOND 

FOR  THE  CARGO. 

ART.  2108.  If  the  captain  of  a  vessel  is  obliged  to  call  at  a  port,  and 
should  consider  it  necessary  for  the  better  preservation  of  all  or  a  part 
of  his  cargo  to  unload  and  reload  the  same  and  did  not  have  or  could 
not  secure  the  consent  of  the  shippers,  he  shall  apply  to  the  judge  in 
writing  or  in  person  in  case  of  emergency  in  order  to  obtain  the 
authority  required  by  article  775  of  the  Code. 

ART.  2109.  In  order  to  obtain  said  authority  the  captain  shall  request 
that  the  cargo  be  examined  by  experts,  one  to  be  named  by  himself 
and  another  appointed  by  the  representative  of  the  department  of  the 
public  prosecution  on  behalf  of  the  absent  shippers,  the  third  to  be 
selected  by  lot  by  the  judge,  in  case  of  disagreement. 

ART.  2110.  The  judge  shall  order  that  the  examination  be  made,  and 
if  it  appears  from  the  report  of  the  experts  that  the  unloading  is  nec- 
essary he  shall  order  the  same. 

ART.  2111.  A  certified  copy  of  all  proceedings  shall  be  delivered  to 
the  captain  of  the  vessel. 

ART.  2112.  In  the  case  of  general  cargoes,  if  one  of  the  shippers 
desires  to  discharge  his  merchandise,  and  the  others  desire  to  take 
advantage  of  the  rights  granted  them  by  article  765  of  the  Code,  they 
shall  apply  to  the  judge,  asking  that  they  be  allowed  to  take  charge 
of  the  merchandise  sought  to  be  discharged,  and  shall  deposit  its  value 
according  to  the  invoice  price. 

ART.  2113.  If  the  application  referred  to  in  the  foregoing  article  is 
made  in  the  manner  prescribed  by  law,  the  judge  shall  consent  thereto, 
and  shall  order  the  owner  of  the  goods  to  receive  the  amount  deposited. 

In  case  the  owner  of  the  goods  does  not  wish  to  receive  the  price 
thereof,  they  shall  be  disposed  of  in  the  manner  prescribed  in  article 


LA.W    OF    CIVIL    PROCEDURE.  421 

2050,  the  owner  reserving  any  right  which  he  may  have  against  any 
person  and  in  the  manner  he  may  consider  proper. 

ART.  2114.  For  the  purpose  of  discharging  the  cargo  by  reason  of 
an  arrival  under  stress,  referred  to  in  article  974  of  the  Code,  the 
captain  of  the  vessel  shall  request  that  the  vessel  and  the  cargo  be 
examined  by  experts  in  order  that  they  may  state  that  the  arrival  was 
necessary  in  order  to  make  the  repairs  which  the  vessel  needed,  or  in 
order  to  avoid  damage  or  injury  to  the  cargo. 

The  appointment  of  these  experts  shall  be  made  in  the  manner  pre- 
scribed in  article  2109. 

ART.  2115.  If  the  experts  should  be  of  the  opinion  that  the  discharge 
is  necessary,  the  judge  shall  order  it  made,  taking  the  necessary  steps 
for  the  preservation  of  the  cargo. 

ART.  2116.  In  case  that  the  captain  of  the  vessel  should  make  the 
declaration  of  averages  referred  to  in  article  976  of  the  Code,  as  soon 
as  the  goods  are  examined  by  experts,  as  prescribed  in  article  977,  if 
in  their  opinion  it  is  to  the  interest  of  the  absent  shipper  that  they  be 
sold,  the  sale  shall  be  made  in  the  manner  prescribed  in  the  following 
title. 

ART.  2117.  In  case  of  abandonment  for  the  payment  of  freight, 
referred  to  in  article  790  of  the  Code,  if  the  freighter  should  not  be 
satisfied,  the  shippers  shall  request  the  judge,  with  the  intervention 
of  the  former,  to  proceed  to  the  weighing  or  measuring  of  the  vessels 
which  contain  the  liquids  which  it  is  proposed  to  abandon. 

ART.  2118.  After  the  weighing  or  measuring  is  performed  as  ordered 
by  the  judge,  if  it  should  result  that  the  vessels  have  lost  more  than 
the  half  of  their  contents,  he  shall  order  that  they  be  delivered  to  the 
freighter. 

ART.  2119.  In  order  to  authorize  the  intervention  mentioned  in  arti- 
cle 794  of  the  Code,  the  captain  of  the  vessel  may  request  it  in  writing 
and  the  judge  shall  grant  it  in  the  manner  which  will  produce  the  least 
possible  injury. 

ART.  2120.  If  security  for  the  value  of  the  cargo  becomes  necessary, 
in  accordance  with  the  provisions  of  article  805  of  the  Code,  the  captain 
shall  request  it  of  the  judge,  attaching  to  his  request  the  documentary 
evidence  of  said  value. 

ART.  2121.  The  judge,  in  view  of  the  written  request  and  the  docu- 
ments presented,  shall  determine  whether  or  not  security  should  be 
furnished,  and  if  proper  shall  fix  the  amount  and  class  thereof  as 
requested  by  the  captain  of  the  vessel. 

If  the  security  be  in  cash,  it  shall  be  deposited  immediately  in  the 
manner  prescribed  in  article  2090. 


422  LAW    OF    CIVIL    PROCEDURE. 

TITLE  VI. 

SALE  AND  MOETOAGE  OF  MEECHANDISE  IN  URGENT  CASES  AND  THE  REPAIR- 
ING OF  VESSELS. 

ART.  2122.  In  the  cases  mentioned  in  articles  151,  593,  608,  614,644, 
653,  798,  825,  978,  979,  985,  990,  and  991  of  the  Code  the  following 
rules  shall  be  observed: 

First.  Whenever  it  becomes  necessary,  according  to  the  provisions 
of  articles  151,  978,  and  979  of  the  Code  to  sell  damaged  goods  or  goods 
that  have  been  altered  to  such  an  extent  as  to  render  their  sale  urgent, 
the  commission  merchant  having  charge  thereof,  or  the  captain  of  the 
vessel  transporting  the  same,  shall  petition  the  judge  therefor,  stating 
the  number  and  class  of  the  goods  to  be  sold.  The  petition  shall  be 
accompanied,  in  a  proper  case,  with  a  statement,  signed  by  the  captain 
of  the  vessel,  showing  the  amount  of  cash  on  hand,  and  shall  also 
furnish  evidence  of  the  efforts  made  to  obtain  a  bottomry  loan  of  the 
necessary  amount  and  the  failure  thereof. 

Second.  Upon  the  presentation  of  the  petition,  without  prejudice 
that  in  a  proper  case  the  evidence  mentioned  in  the  foregoing  rule 
may  be  taken,  the  judge  shall  appoint  at  once  an  expert  who  shall 
examine  the  goods  the  same,  or  at  the  latest  on  the  following,  day. 

Third.  As  soon  as  the  expert  reports  upon  the  condition  of  the  goods, 
and  if  it  appears  that  a  sale  is  necessary,  and  after  said  evidence  has 
been  received,  in  a  proper  case,  the  judge  shall  issue  an  order  ordering 
its  appraisement  and  public  sale,  and  he  shall  adopt  such  measures  as 
will  give  it  the  utmost  publicity,  taking  into  consideration  not  only 
the  value  of  the  merchandise,  but  also  the  greater  or  lesser  urgency  of 
the  sale  according  to  its  state  of  preservation. 

Fourth.  The  sale  of  goods  saved  from  shipwreck  shall  be  subject, 
according  to  circumstances,  to  the  proceedings  mentioned  in  the  fore- 
going rules.  The  judge  who  has  ordered  their  deposit  shall  order  the 
sale  of  the  same,  ex  officio,  when  proper. 

Fifth.  If  the  proceeds  from  the  sale  are  not  to  be  immediately 
applied,  they  shall  be  deposited  in  the  manner  prescribed  in  article 
2090,  subject  to  the  order  of  the  person  entitled  thereto,  after  deduct- 
ing the  amount  of  all  costs  and  expenses. 

Sixth.  In  order  to  show  the  necessity  for  the  sale  of  a  vessel  which, 
during  its  voyage,  has  been  rendered  useless  for  further  navigation, 
and  can  not  be  repaired  sufficiently  to  continue  her  voyage,  her  cap- 
tain or  master  may  petition  the  judge  that  she  be  examined  by  experts. 
The  written  petition  shall  be  accompanied  by  the  entrance  papers  of 
the  vessel,  to  which  article  648  of  the  Code  refers,  and  the  log  book, 
so  that  the  court  clerk  may  enter  on  the  register  an  authentic  record 
thereof. 


LAW    OF    CIVIL    PKOCEDUEE.  423 

The  appointment  of  experts  shall  be  made  in  the  manner  prescribed 
in  article  2109;  and  if  from  the  expert  report  both  conditions  are 
affirmed,  the  judge  shall  order  the  sale  with  the  formalities  prescribed 
in  article  608  of  said  Code.  The  amount  received  from  said  sale  shall 
be  deposited  as  in  the  case  provided  for  in  the  foregoing  rule,  after  all 
costs  and  expenses  have  been  deducted. 

Seventh.  In  all  of  the  cases  referred  to  in  the  foregoing  rules,  when 
in  the  first  public  sale  there  should  be  no  bidder,  or  the  bids  offered 
do  not  cover  two-thirds  of  the  appraisement,  a  second  or  subsequent 
sales  shall  be  announced  for  the  same  length  of  time,  with  a  reduction 
of  20  per  cent  in  each. 

Eighth.  When  a  vessel  is  in  need  of  repairs  and  any  of  the  owners 
refuse  to  give  their  consent  thereto,  or  do  not  provide  the  necessary 
funds,  the  person  believing  'said  repairs  to  be  necessary  shall  apply  to 
the  judge,  requesting  that  the  ship  be  examined  by  experts. 

After  the  vessel  has  been  examined  by  the  experts  appointed  by  the 
petitioner  and  the  person  opposing  the  petition,  and  a  third  in  case  of 
disagreement,  and  it  is  found  that  the  repairs  are  necessary,  the  judge 
shall  order  that  the  party  refusing  to  furnish  the  necessary  funds  be 
required  to  furnish  the  same  within  a  period  of  eight  days,  and  he 
shall  be  admonished  that  if  he  does  not  do  so  he  shall  be  deprived  of 
his  interest  in  the  vessel  upon  payment  to  him  by  the  coowners  of  the 
amount  of  the  true  value  of  such  interest  before  the  repairs  were 
made. 

This  true  value  shall  be  determined  by  the  same  experts  who 
examined  the  vessel,  and  the  amount  so  determined,  if  the  coowner 
refuses  to  receive  it,  shall  be  deposited  in  the  manner  provided  in  the 
foregoing  rules,  said  coowner  reserving  the  right  to  institute  any 
proper  action  in  the  matter  according  to  its  import. 

Ninth.  When  the  captain  of  a  vessel,  according  to  the  provisions  of 
articles  644  and  826  of  the  Code,  requires  judicial  permission  in  order 
to  contract  a  loan  on  bottomry,  he  must  request  it  by  furnishing  such 
evidence  or  by  presenting  documents  which  prove  the  urgency  of  said 
loan  and  that  he  has  been  unable  to  secure  funds  by  any  of  the  means 
enumerated  in  the  first  of  the  articles  cited.  He  shall  also  request 
the  judge  that  he  appoint  an  expert  to  examine  the  vessel  and  deter- 
mine the  amount  necessary  for  the  repairs,  rehabilitation,  and  purvey- 
ance of  said  vessel. 

The  judge,  in  view  of  the  expert  report,  shall  order  the  publication 
of  two  notices,  which  shall  be  posted  in  the  customary  places  and 
inserted  in  the  Boletin  oficial  of  the  province,  where  there  is  one,  or 
in  the  Gaceta  of  the  general  government,  and  in  said  notices  shall  be 
succinctly  stated  the  request  of  the  captain  of  the  vessel  and  the 
amount  which  the  expert  may  have  determined. 

When  authority  to  contract    the   loan   has    been   granted   by   the 


424  LAW    OF    CIVIL    PROCEDURE. 

judge,  if  in  addition  to  this  the  captain  can  not  secure  the  sum  neces- 
sary, he  may  request  the  sale  of  that  part  of  the  cargo  which  may  be 
necessary. 

This  sale  shall  be  made  after  an  appraisement  by  experts  appointed 
according  to  the  provisions  of  article  2109  and  at  a  public  sale, 
announced  and  verified  according  to  the  formalities  prescribed  in  the 
foregoing  rules. 

Tenth.  In  case  that  the  captain  of  a  vessel  has  been  obliged  to  com- 
pel the  owners  of  provisions  carried  on  their  own  particular  account 
to  deliver  them  for  the  common  use  of  the  persons  on  board,  and  the 
owners  thereof  do  not  agree  that  necessity  therefor  existed,  or  if  they 
are  dissatisfied  with  the  amount  offered  by  the  captain  in  payment  for 
said  provisions,  either  the  captain  or  the  owners,  in  order  to  prove  the 
facts,  may  institute  judicial  proceedings  at  the  first  port  of  arrival. 

After  proceedings  are  instituted,  the  judge  shall  hear  the  interested 
persons,  and  if  they  do  not  agree  to  the  amount  offered  by  the  captain 
in  payment  of  the  provisions,  the  proceedings  shall  be  terminated  and 
the  owners  may  institute  such  judicial  action  as  they  may  consider 
proper. 

If  the  amount  at  issue  should  not  exceed  1,000  pesetas  it  shall  be 
heard  and  determined  in  an  oral  action;  if  it  exceeds  this  sum  it  shall 
be  subject  to  the  procedure  established  for  incidental  issues. 

Eleventh.  If  the  freighter  desires  to  make  use  of  the  rights  granted 
to  him  by  article  798  of  the  Code,  he  shall  petition  the  judge  that  the 
consignee  be  required  to  pay  immediately  the  amount  due  for  freight, 
and  if  not  paid,  for  authority  to  proceed  to  the  judicial  public  sale  of 
such  part  of  the  cargo  as  may  be  necessary,  in  the  manner  prescribed 
in  the  foregoing  rules. 

After  the  requisition  has  been  made  upon  the  consignee,  and  if  he 
refuses  or  neglects  to  make  said  payment,  the  judge  shall  order  that 
such  part  of  the  cargo  as  may  be  necessary  be  deposited,  said  part 
being  designated  by  experts  appointed  by  the  interested  parties,  and 
a  third  one  which  the  judge  shall  select  by  lot  in  case  of  disagreement. 

If,  after  the  sale  has  been  made,  the  proceeds  should  not  be  suf- 
ficient to  cover  the  indebtedness,  at  the  instance  of  the  freighter  and 
with  the  same  formalities,  said  deposit  may  be  increased  and  a  subse- 
quent sale  ordered. 

In  case  the  consignee  should  interpose  opposition,  the  amount 
received  from  the  sale  shall  be  deposited  in  the  establishment  provided 
therefor  until  it  shall  be  decided  in  a  proper  action  whether  or  not 
payment  shall  be  made. 

The  complaint  must  be  presented  within  twenty  days,  and  the  action 
heard  and  determined  according  to  the  procedure  prescribed  for  inci- 
dental issues.  If  said  action  is  not  instituted  within  said  period,  the 
judge  shall,  ex  officio,  raise  the  deposit  and  deliver  the  amount  due  to 
the  freighter. 


LAW    OF    CIVIL    PROCEDURE.  425 

TITLE  VII. 

OTHEK  COMMEKCIAL  ACTS  REQUIRING  PEREMPTORY  JUDICIAL  INTERVENTION. 

ART.  2123.  In  the  case  referred  to  in  article  307  of  the  Code,  if  any 
of  the  copartners  believe  that  the  person  in  charge  of  the  management, 
and  who  has  authority  to  sign  for  the  firm,  is  making  an  improper  use 
of  these  powers,  and  they  desire  to  appoint  a  comanager,  they  shall 
present  a  written  request  to  the  judge,  asking  that  he  receive  evidence 
in  the  matter;  and  if  the  improper  use  of  said  powers  be  proven,  then 
the  person  designated  by  them  shall  be  appointed  comanager. 

The  said  petition  shall  be  accompanied  with  a  copy  thereof,  which 
shall  be  delivered  to  the  managing  partner  at  the  time  the  citation  is 
served  upon  him. 

ART.  2124.  The  managing  partner  may  present  such  contrary  evi- 
dence as  he  may  consider  proper  and  the  documents  which  prove  his 
good  business  management. 

ART.  2125.  After  the  evidence  has  been  presented  the  judge  shall 
hear  the  interested  parties  and  shall  then  decide  whether  or  not  a 
comanager  should  be  appointed. 

ART.  2126.  If  it  is  decided  that  a  comanager  should  be  appointed, 
the  judge  shall  name  the  person  designated  by  the  partners  who 
requested  the  same. 

Should  the  managing  partner  plead  well-founded  reasons  for  oppos- 
ing the  appointment  of  the  person  proposed,  the  parties  in  interest 
shall  be  cited  to  another  hearing,  and  should  they  not  agree,  the 
appointment  shall  be  made  of  another  person  designated  by  the 
partners. 

ART.  2127.  Any  partner  who  desires  to  make  use  of  the  rights 
granted  him  bv  articles  308  and  310  of  the  Code,  or  of  those  of  a  like 
nature  which  result  from  the  contract  or  articles  of  copartnership,  if  the 
manager  should  refuse  to  allow  it,  he  may  appeal  to  the  judge,  in 
writing,  and  he  shall  order  at  once  that  the  books  and  papers  of  the 
company  which  he  wishes  to  examine  be  placed  at  his  disposal. 

If  the  managing  partner  refuses  in  any  manner  to  exhibit  the  books 
and  papers,  the  judge  shall  take  the  steps  necessary  to  compel  him  to 
do  so. 

ART.  2128.  When  a  part  owner  of  a  vessel  desires  to  exercise  the 
right  of  redemption,  to  which  article  612  of  the  Code  refers,  or  to 
make  the  prevention  according  to  the  provisions  of  article  613,  it  shall 
be  sufficient  for  him  to  serve  notice  thereof  within  the  legal  period  to 
the  vendor  or  to  his  copartners,  by  means  of  a  notarial  instrument, 
depositing  in  the  first  case  the  price  of  the  sale  with  the  notary. 

ART.  2129.  In  any  of  the  cases  provided  for  in  articles  751,  752,753, 
754,  760,  and  761  of  the  Code,  after  the  complaint  is  filed  with  the  judge, 


426  LAW    OF    CIVIL    PEOCEDURE. 

and  after  summary  proceedings,  the  judge  shall  make  a  proper  decision 
and  shall  order  that  the  captain  of  the  vessel  and  other  proper  persons 
be  required  to  perform  the  same. 

ART.  2130.  The  captain  of  a  vessel  who,  in  order  to  avoid  liability 
in  case  of  danger,  should  desire  to  open  the  hatches  in  order  to  show 
the  good  ballasting  of  the  cargo,  shall  request  for  the  same  judicial 
permission,  and  shall  immediately  designate  the  expert  on  his  part  to 
assist  in  the  act. 

ART.  2131.  After  the  request  is  presented  the  judge  shall  order  that 
the  shippers  and  consignees,  should  they  be  at  the  place,  and  in  their 
absence,  the  representative  of  the  department  of  public  prosecution, 
appoint  another  expert.  When  the  experts  are  appointed,  the  permis- 
sion requested  shall  be  granted. 

ART.  2132.  The  hatches  shall  be  opened  in  the  presence  of  the  court 
clerk,  the  experts,  and  the  captain  of  the  vessel;  the  shippers  and  con- 
signees may  also  be  present;  after  the  cargo  is  examined  by  the  experts 
a  statement  thereof  shall  be  made,  which  shall  be  signed  by  all  those 
present. 

Should  the  experts  disagree,  the  judge  shall  select  another  by  lot. 

ART.  2133.  After  the  proceedings  are  concluded  the  original  state- 
ments shall  be  delivered  to  the  captain,  should  he  desire  to  use  them 
at  another  port. 

ART.  2134.  In  the  cases  in  which  the  captain  of  a  vessel  may  have  to 
prove  the  causes  for  the  average  arrivals  under  stress,  shipwreck,  or 
any  other  fact  which  might  cause  him  to  incur  liability  for  not  having 
acted  in  the  manner  prescribed  in  the  code  of  commerce,  he  shall 
present  a  written  petition  to  the  judge  requesting  that  the  depositions 
of  the  crew  and  passengers  be  received  with  regard  to  the  truth  of  the 
facts  set  forth. 

Said  written  petition  shall  be  accompanied  by  the  log  book. 

ART.  2135.  The  judge  on  receipt  thereof  shall  receive  the  evidence 
offered  and  shall  order  that  a  certified  copy  of  the  part  of  the  log  book 
which  refers  to  the  occurrence  and  the  causes  therefor  be  made  and 
that  all  the  original  proceedings  be  afterwards  delivered  to  the  captain. 

TITLE  VIII. 

APPOINTMENT    OF   ARBITRATORS    AND    EXPERTS    IN    INSURANCE    CONTRACTS. 

ART.  2136.  When,  in  accordance  with  the  provisions  of  article  324 
of  the  Code,  the  judge  is  required  to  intervene  in  the  appointment  of 
arbitrators,  any  of  the  parties  in  interest  may  request  that  a  reason- 
able time  be  designated  for  the  purpose  of  making  the  appointment. 

If  the  time  named  should  elapse  without  the  appointment  being 
made,  the  judge  shall  make  it  ex  officio,  naming  the  persons  who  in  his 
opinion  are  competent  and  impartial  for  the  decision  of  the  question 
at  issue. 


LAW    OF    CIVIL    PROCEDUEE.  427 

ART.  2137.  Should  the  interested  parties  not  agree  to  the  appoint- 
ment of  the  arbitrators  in  the  cases  referred  to  in  articles  323,  345,  and 
989  of  the  Code,  and  as  prescribed  in  any  other  in  which  arbitrators 
should  be  appointed,  any  of  the  parties  in  interest  may  apply  to  the 
judge  and  request  that  he  appoint  said  experts. 

When  the  written  petition  requesting  the  appointment  is  presented, 
the  judge  shall  set  a  time,  which  shall  not  exceed  ten  days,  in  order 
that  the  interested  parties  may  make  the  appointment  themselves; 
after  which,  if  the  appointment  is  not  made,  the  judge  shall  proceed 
according  to  the  provisions  of  the  second  paragraph  of  the  foregoing 
article. 

ART.  2138.  When  it  has  been  stipulated  that  the  decision  of  any 
question  be  subjected  to  the  decision  of  amicable  compounders,  the 
appointment  of  these  shall  be  made  in  the  manner  prescribed  in  the 
preceding  articles. 

ART.  2139.  When  the  appointment  of  experts  as  provided  in  article 
879  of  the  Code  is  proposed  with  regard  to  a  stipulation  for  the  increase 
of  the  premium  on  insurance,  one  expert  shall  be  selected  by  each  of 
the  interested  parties. 

This  selection  shall  be  made  in  writing,  accompanied  by  the  policy 
of  insurance. 

ART.  2140.  Should  the  experts  not  agree,  the  judge  shall  appoint  a 
third  by  lot. 

ART.  2141.  After  the  amount  of  the  increase  has  been  determined 
the  judge  shall  order  that  advice  thereof  be  given  to  the  proper 
persons. 

ART.  2142.  In  the  cases  in  which  by  reason  of  the  contract  of  insur- 
ance it  becomes  necessary  that  the  loss  be  judicially  shown,  that  the 
amount  thereof  be  appraised,  and  that  the  merchandise  damaged  be 
sold,  the  provisions  of  preceding  titles  applicable  to  analogous  cases 
shall  be  applicable  thereto. 

FINAL   PROVISION. 

ART.  2143.  All  laws,  royal  decrees,  regulations,  orders,  and  local 
laws  in  which  rules  of  procedure  have  been  established  are  hereby 
repealed. 

Rules  of  civil  procedure  prescribed  in  the  mortgage  law  and  other 
special  laws  are  excepted  from  this  provision. 


APPENDICES. 


429 


APPENDIX  I. 

CHANGES  IN  AND  AMENDMENTS  TO  THE  CIVIL  PROCEDURE  OF  THE  ISLAND 
OF  CUBA  MADE  BY  THE  MILITARY  GOVERNMENT  DURING  THE  YEARS  1899 
AND  1900. 

No.  41. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  April  14,  1899. 

The  military  governor  of  Cuba  directs  the  publication  of  the  follow- 
ing order: 

ORGANIZATION    OF   THE    SUPREME   COURT. 

I.  A  supreme  court  is  hereby  created,  which  shall  sit  in  the  capital 
of  the  island  and  which  shall   have  and  shall  exercise  jurisdiction 
throughout  Cuban  territory.     No  other  court  or  tribunal  shall  have 
the  same  title,  character,  or  category. 

II.  The  supreme  court  shall  be  composed  of  a  president  or  chief 
justice,  six  associate  justices,  and  one  fiscal,  two  assistant  fiscals,  one 
secretary  or  chief  clerk,  two  deputy  clerks,  and  such  other  subordinate 
employees  as  may  hereinafter  be  provided  for. 

III.  The  subordinate  employees  shall  be  six  clerks  for  the  secretary, 
three  "  alguacttes"  one  doorkeeper,  two  laborers  for  the  court,  two 
clerks,  and  one  "  alg-uacil"  for  the  fiscal. 

IV.  As  a  court  of  justice,  the  supreme  court  shall  sit  as  a  single 
body,  consisting  of  the  president  and  the  six  associate  justices.     Five 

stices  shall  constitute  a  quorum  to  render  judgment,  but  three  may 
lirect  the  course  of  pleadings  and  procedure.     In  appeals  from  sen- 
mces  involving  capital  punishment  or  so-called  perpetual  penalties, 
or  when  the  fiscal  or  plaintiff  shall  apply  for  the  infliction  of  any  such 
malties,  not  less  than  seven  justices  shall  sit  at  the  hearing.     All 
iecisions  and  rulings  must  be  concurred  in  by  a  majority  of  the  jus- 
;es  sitting.     In  case  of  disagreement,  the  question  shall  be  decided 
)rding  to  the  law  of  procedure. 

V.  If  on  account  of  valid  objection  to  one  or  more  of  the  justices, 
for  any  cause,  the  number  of  justices  is  reduced  below  that  required 

for  a  quorum,  substitutes  may  be  had  in  the  following  order:  First, 
ie  president  of  the  audiencia  of  Havana;  second,  the  presidents  of 
the  different  departments  of  the  said  audiencia;  and  third,  the  judges 
of  the  same.  Among  those  of  equal  grade,  the  senior  judge  in  length 
of  service  shall  be  preferred,  and  in  case  two  or  more  shall  have  the 

431 


432  LAW    OF    CIVIL    PROCEDUEE. 

same  length  of  service,  preference  will  be  determined  by  seniority  of 
age.  This  last  rule  will  also  be  applied  in  cases  wherein  a  member  of 
the  court  is  substituted  for  the  chief  justice.  If  the  case  before  the 
court  involves  a  decision  either  previously  concurred  in  or  rendered  in  a 
case  in  which  any  of  the  substitutes  have  taken  a  part,  other  substitutes 
following  next  in  order  as  above  shall  take  their  places,  and  the  dis- 
qualified judge  or  judges  shall  refrain  from  sitting  on  the  case. 

VI.  The  provisions  of  the  foregoing  article  shall  likewise  apply  in 
all  civil  cases  in  which  the  justices  may  be  divided  in  opinion   and 
there  shall  be  lacking  the  number  requisite  to  decide  the  issue. 

CONSTITUTION   AND   ATTRIBUTES   OF   THE    SUPREME    COURT. 

VII.  The  supreme  court,  in  addition  to  its  functions  as  a  court  of 
justice,  shall  also  meet  in  administrative  session.     When  sitting  as  a 
court  of   justice,  the    supreme   court   shall  have  jurisdiction  in  the 
following  cases: 

1.  Criminal  actions  which  may  be  hereafter  expressly  and  specifically 
placed  under  its  jurisdiction. 

2.  Criminal  actions  instituted  against  the   chief   justice,  associate 
justices,  fiscal  or  assistant  fiscals  of  the  supreme  court. 

3.  Criminal    actions    against  the   president  of  any  audiencia,  or 
against  the  president  of  one  of  the  sections  of  an  audiencia. 

4.  Criminal  actions  against  the  chief  clerk  or  any  of  the  deputy 
clerks  of  the  supreme  court  for  criminal  offenses  in  connection  with 
the  discharge  of  their  official  duties. 

5.  Criminal  actions  against  the  secretary  of  an  executive  department 
of  the  government  or  against  the  civil  governor  of  a  province. 

In  the  cases  enumerated  in  the  five  preceding  paragraphs  the 
supreme  court  shall  have  exclusive  and  original  jurisdiction  to  try 
and  decide  them  in  oral  and  public  trial.  The  court  shall  designate  a 
judge  of  an  audiencia  as  a  special  commission  to  inquire  into  such 
cases  and  to  present  them  to  the  court. 

6.  Actions  for  civil  liabilities  against  the  chief  justice  or  any  of  the 
associate  justices  of  the  supreme  court,  or  the  president  of  an  audiencia 
or  any  one  of  its  sections,  or  a  judge  of  such  audiencia  or  section. 

7.  Cases  of  objection  to  the  president  of  the  supreme  court  or  to 
one  or  more  of  its  justices. 

In  the  last  two  cases  the  court  shall  proceed  according  to  the  methods 
prescribed  by  the  law  of  civil  procedure. 

8.  Questions  of  consolidation  or  joining  of  actions  and  questions  of 
jurisdiction  between  judges  and  tribunals  who  have  no  other  common 
superior  than  the  supreme  court. 

9.  Review  of  rulings  of  audiencias,  denying  the  right  of  appeal  to 
the  supreme  court,  from  decisions  in  which  are  alleged  errors  of  law, 
of  legal  doctrine,  or  defects  in  procedure. 


LAW    OF    CIVIL    PROCEDURE.  433 

10.  Petitions  for  annulment  of  judgment  for  alleged  error  in  law  or 
legal  doctrine  in  cases  where  the  hearing  of  such  petitions  may  have 
been  admitted. 

11.  Petitions  for  annulment  of  judgment  for  alleged  defects  of  form 
in  procedure  in  cases  where  such  petition  may  have  been  admitted. 

12.  The  merits  of  the  case  itself,  where  the  annulment  of  the  judg- 
ment asked  for  in  the  petition  has  been  granted  by  the  supreme  court 
on  grounds  of  error  in  law  or  legal  doctrine. 

The  provisions  of  the  five  preceding  paragraphs  shall  apply  both  to 
civil  and  to  criminal  matters,  except  in  so  far  as  they  refer  to  appeals 
for  error  in  legal  doctrine  which  relate  exclusively  to  matters  of  a 
civil  character. 

13.  Petitions  for  annulment  of  awards  rendered  by  arbitrators. 

14.  Petitions  for  revision  in  civil,  criminal,  and  administrative  mat- 
ters (contencioso  administrative*). 

15.  The  execution  of  decisions  rendered  by  foreign  courts  in  accord- 
ance with  treaties  and  laws  now  in  force  or  which  may  be  enacted  or 
decreed  hereafter.    Cases  are  excepted  which  may,  by  treaty,  be  placed 
under  the  jurisdiction  of  other  tribunals. 

16.  Proceedings  to  determine,  if  hearing  should  be  granted,  when 
judgment  by  default  has  already  been  rendered  by  the  supreme  court 
itself. 

17.  All  extradition  proceedings  in  cases  wherein  the  supreme  court 
itself  has  jurisdiction. 

18.  Appeals  from  the  decisions   of   the  audiencia  of  Havana  in 
administrative  cases  (contencioso  administrativo),  as  well  as  petitions 
for  reversal  of  decision  in  which  appeal  in  such  cases  is  denied. 

k!9.  Of  any  other  matter  of  judicial  character  which  the  law  may 
ereafter  place  under  its  special  jurisdiction. 
VIII.  The  supreme  court,  when  sitting  in  administrative  sessions,  is 
vested  with  the  following  authority  and  powers: 

1.  To   supervise  the  administration  of  justice  throughout  Cuban 
territory. 

2.  To  decide  all  matters  which  may  be  attributed  to  it  by  law,  and 
which  are  not  under  the  jurisdiction,  as  above  stated,  of  the  court 
when  sitting  as  a  court  of  justice. 

3.  To  make  such  reports  as  the  Government  may  request  concern- 
ng  the  administration  of  justice,  the  organization  of  courts  and  con- 

uct  of  business  therein,  the  administration  and  financial  affairs  of  the 
judiciary,  and,  in  general,  the  promulgation,  repeal,  and  reform  of 

rW8. 

4.  To  propose  to  the  Government  what  it  may  deem  advisable  or 
necessary  in  the  matters  to  which  the  preceding  paragraph  refers. 

5.  To  exercise  disciplinary  jurisdiction  in  the  cases  specified  in  the 

2901 28 


434  LAW    OF    CIVIL    PEOCEDUEE. 

Digest  of  Organic  Regulations  for  the  Administration  of  Justice l  and 
in  the  law  of  procedure  in  the  manner  prescribed  in  said  digest. 

6.  To  appoint  and  remove  the  subordinate  employees  of  the  court, 
on  the  recommendation  of  the  president,  except  as  provided  for  in 
paragraph  12,  Article  XIV,  and  Article  XXVII. 

7.  To  exercise  such  control  as  the  laws  may  confer  upon  it  over  the 
appointment,  oath  of  office,  and  installment  of  judicial  officers. 

8.  To  prescribe  regulations  for  the  dress  of  officers  of  the  court,  the 
method  of  dispatching  business,  and  the  maintenance  of  order  in  the 
court. 

IX.  The  supreme  court,  when  in  administrative  session,  shall  be 
composed,  as  when  sitting  as  a  court  of  justice,  of  the  president  and 
associate  justices  of  the  court;  but  in  addition  the  fiscal  or  assistant 
fiscal  who  may  represent  him  shall  invariably  be  present  and  shall 
have  the  right  to  speak  and  vote,  except  when  the  question  before  the 
court  shall  involve  the  exercise  of  disciplinary  jurisdiction.     In  such 
cases  the  fiscal  shall  confine  himself  to  the  ordinary  duties  of  his  office, 
in  accordance  with  the  rules  mentioned  in  section  5  of  the  preceding 
article. 

X.  Five  of  the  above-mentioned  members  of  the  court  shall  consti- 
tute a  quorum  to  hold  administrative  session.     All  decisions  shall  be 
made  by  a  majority  of  the  members  present,  except  that  in  cases 
involving  the  exercise  of  disciplinary  jurisdiction,  the  fiscal  or  his 
substitute  shall  not  count  to  form  the  aforesaid  quorum  of  five. 

XI.  The  meetings  of  the  court  in  administrative  session  shall  ordi- 
narily be  held  weekly,  unless  there  should  be  no  business  pending 
before  it;  but  in  exceptional  cases  the  president,  if  he  deem  it  neces- 
sary, may  call  an  extra  session  at  any  time. 

XII.  The  court,  in  administrative  session,  shall  be  governed  by  the 
rules  contained  in  title  10  of  the  Digest  in  all  matters  relating  to  the 
methods  of  voting  and  debating,  the  manner  of  holding  sessions,  and 
attendance  upon  the  same,  the  duties  of  the  secretary,  the  recording 
of  the  minutes,  and  of  the  votes  taken,  as  well  as  other  matter  within 
the  province  of  the  court  in  such  session.     From  this  rule  are  excepted 
the  provisions  of  article  311  of  the  Digest,  in  so  far  as  these  relate  to 
the  presence  of  the  assistant  fiscal,  who,  when  present  in  place  of  the 
fiscal,  shall  have  the  right  to  speak  and  vote,  as  prescribed  in  Article 
IX. 

XIII.  The  decision  of  the  court,  in  administrative  session,  must  be 
accompanied  by  the  reasons  therefor,  but  they  need  not  necessarily  have 
the  form  of  "  resultandos"  and  "  consider andos"  which  form  the  court 
may  adopt  at  its  discretion.     In  a  case  wherein  the  court  shall  concur 
in  the  written  opinion  of  the  fiscal  and  the  grounds  thereof,  it  shall  b 
sufficient  for  it  to  express  its  conformity  with  both. 

1  Compilation  de  las  Disposiciones  orgdnicas  de  la  Administration  de  Justitia.     This 
will  hereafter,  in  this  decree,  be  referred  to  simply  as  "The  Digest." 


\i\J 

ari 


LAW    OF    CIVIL    PROCEDUEE.  435 

THE   PRESIDENT   OF   THE   COURT. 

XIV.  The  chief  justice  shall  be  the  presiding  officer  of  the  supreme 
court,  and  as  such  shall  have  the  following  powers: 

1.  To  convene  and  preside  over  the  court,  either  when  sitting  as  a 
court  of  justice  or  in  administrative  session. 

2.  To  enforce  obedience  to  this  decree  and  to  all  laws  relating  to  the 
duties  of  his  office. 

3.  To  recommend  to  the  government  such  measures  as  he  may  con- 
sider necessary  or  advisable  to  insure  the  better  administration  of 
justice. 

4.  To  receive  and  despatch  official  correspondence. 

5.  To  forward,  with  his  opinion  thereon,  all  petitions,  complaints, 
and  reports  which  the  court,  the  associate  justices,  or  subordinates 
thereof  may  present  to  the  government. 

6.  To  receive  excuses  of  the  associate  justices,  officers,  and  subor- 
dinates of  the  court  for  nonattendance  thereon. 

7.  To  see  that  all  associate  justices,  officers,  and  subordinates  of  the 
court  fully  perform  their  duty,  and  to  issue  such  orders  as  he  may 
deem  advisable  to  insure  the  discharge  of  their  functions. 

8.  To  indicate  to  the  fiscal  what  he  may  consider  advisable  for  the 
better  administration  of  justice,  so  far  as  relates  to  the  fiscal  and  his 
subordinates,  but  without  communicating  directly  with  such  subordi- 
nates  or  restricting  in  any  way  the  free  action  of   these  officials. 
When  he  considers  it  necessary,  he  will  report  to  the  government  what 
he  may  deem  advisable  concerning  the  fiscals  and  their  duties. 

9.  To  report  to  the  court  such  acts  of  the  associate  justices  as  may 
deserve  disciplinary  correction,  and  also  offenses  which  the  said  justices 
may  have  committed  in  the  discharge  of  their  official  functions. 

10.  To  report  to  the  government  all  vacancies  occurring  in  the 
court,  which  should  be  filled  by  appointment  by  the  government,  as 
well  as  all  vacancies,  due  to  any  cause,  which  may,  for  any  consider- 
able time,  prevent  any  officer  of  the  court  from  performing  his  duties. 

11.  To  hear  complaints  presented  to  him  by  interested  parties  con- 
cerning delay  in  the  administration  of  justice,  in  cases  pending  before 
the  supreme  court,  or  before  any  audiencia;  to  take  such  measures  in 
the  case  as  may  be  within  his  authority;  to  refer  the  complaint  to  the 
court,  and,  if  it  refers  to  a  case  pending  before  an  audiencia,  to  call  it 
to  the  attention  of  the  president  of  such  audiencia. 

12.  To  appoint  and  discharge,  at  will,  the  laborers  employed  in  the 
urt. 

13.  To  establish  rules  for  the  good  order  and  preservation  of  the 
archives  and  library  of  the  court. 

14.  To  notif  j-  the  court  when  he  himself  is  unable  to  be  present. 

XV.  The  president  of  the  supreme  court  shall  never  he  designated 
as  "ponente" 


436  LAW    OF    CIVIL    PROCEDURE. 

XVI.  The  president  of  the  supreme  court  shall  have  authority  to 
decide  finally  appeals  against  decisions  of  presidents  of  audiencias,  in 
all  cases  wherein  the  latter  take  cognizance  of  appeals  against  the  opin- 
ions of  "  registradores  de  la  propiedad"   concerning  documents  pre- 
sented for  record,  whether  presented  by  private  parties,  or  by  order 
of  court;  there  is  likewise  conferred  upon  him  the  authority  which  the 
"  reglamento  de  la  ley  hipotecaria"  vests  in  the  "seccion  de  los  registros 
6   del  ministerio  de  ultramar"  and    which   was  later  vested  in  the 
corresponding  section  of   the  department  of   grace  and  justice,  and 
government,   of  the  general  government  of  the  island,  during  the 
autonomist  regime. 

THE    SECRETARY   OR  CHIEF   CLERK. 

XVII.  The  duties  of  the  secretary  shall  extend  to  the  court  in  all 
of  its  sessions  and  to  the  office  of  the  president. 

XVIII.  It  shall  be  his  duty- 

1.  To  keep  the  seal  of  the  court. 

2.  To  seal  and  record  the  letters  and  other  documents  ordered  by 
the  court  to  be  issued  officially  or  written  to  interested  parties. 

3.  To  keep  a  book  of  registry,  in  which  shall  be  copied  literally, 
the  documents  mentioned  in  the  preceding  paragraph,  copies  of  which 
shall  be  issued  only  on  the  written  order  of  the  court. 

4.  To  have  direct  charge  of  the  archives  and  the  library  of  the 
court,  with  the  responsibilities  and  duties  prescribed  in  articles  220- 
225,  both  inclusive,  of  the  Digest. 

XIX.  When  the  court  sits  as  a  court  of   justice,   the  secretary 
shall  exercise,  in  the  appeals  and  proceedings  before  the  court,  the 
functions  appropriate  to  his  office,  as  prescribed  in  the  Code  of  Civil 
Procedure,  and  those  enumerated  in  articles  196  and  197  of  the  Digest 
now  in  force. 

XX.  When  his  other  duties  as  secretary  of  the  court,  or  in  the 
president's  office,  render  it  necessary,  these  functions  shall  be  per- 
formed by  the  deputy  clerks  of  the  court.     In  such  cases  the  said 
deputy  clerks  shall  sign  papers  and  documents  and  shall  perform  all 
the  duties  proper  to  be  performed  by  the  secretary,  whom  they  repre- 
sent, but  their  signatures  must  be  preceded  by  the  words  "por  delega- 
cidn." 

XXI.  The  secretary,  when  the  court  is  in  administrative  session, 
shall,  in  person,  attend  to  the  matters  before  it,  and  shall  not  delegate 
these  duties  to  any  other  person,  except  that  in  case  of  his  absence  his 
duties  shall  develope  upon  the  senior  deputy  clerk  of  the  court.     Should 
there  be  two  or  more  such  clerks  having  equal  length  of  service,  the 
said  duties  shall  develope  upon  the  senior  in  age. 

XXII.  As  secretary  of  the  president's  office,  he  shall,  with  the  presi- 
dent, despatch  such  business  as  may  be  assigned  to  him,  in  accordance 
with  this  decree. 


: 


LAW    OF    CIVIL    PROCEDURE.  437 

THE    DEPUTY   CLERKS   OF   THE    COURT. 

XXIII.  The  deputy  clerks  of  the  court  shall  issue  summons,  sub- 
poenas, and  notifications;  they  shall  call  for  records  of  proceedings  held 
out  of  court,  and  perform  any  other  duty  to  be  discharged  outside  of 
and  by  order  of  the  court. 

THE    FISCAL   AND   ASSISTANT   FISCALS. 

XXIV.  The  fiscal  of  the  supreme  court  shall  be  chief  of  the  fiscals 
of  the  island,  and  will  be  directly  responsible  to  the  department  of 
justice  only.     Articles  456-460,  both  inclusive,   of  The  Digest  are 
accordingly  made  a  part  of  this  decree,  with  the  exception  that  for  the 
words  "la  monarquia"  there  shall  be  substituted  the  words  "el  terri- 
torio  Cubano  "  in  all  cases  wherein  the  former  expression  is  used,  and 
for  the  words  "ministerio  de  ultramar"  the  words  "secretaries  de  jus- 
ticia"  shall  be  substituted. 

XXV.  Articles  452-465,  both  inclusive,  of  The  Digest  shall  also  be 
continued  in  force  so  far  as  they  concern  the  fiscal  and  assistant  fiscals 
of  the  supreme  court. 

XXVI.  The  assistant  fiscals  shall  assist  the  fiscal  in  the  duties  of  his 
office  in  such  manner  as  he  may  direct.     When  acting  for  the  fiscal 
they  will  sign  papers  drawn  up  by  them,  placing  before  their  signa- 
tures the  words  " por  delegation." 

XXVII.  The  fiscal  shall  have  authority  to  appoint  and  discharge  at 
will  the  subordinate  employees  of  his  office. 

SUBORDINATE    EMPLOYEES. 

XXVIII.  The  clerks  of  the  secretary's  office  shall  not  appear  offi- 
cially in  judicial  proceedings  or  pleadings  which  the  officers  of  the 
court  are  required  to  act  upon  in  person  and  to  authenticate  with 
their  own  signatures.     The  secretary  or  deputy  clerks  of  the  court 
shall  supervise  and  be  responsible  for  the  work  of  the  clerks  who,  in 
general,  shall  be  under  the  direct  orders  of  these  officers  to  aid  and 
cooperate  with  them  in  the  discharge  of  their  duties. 

XXIX.  The  clerk  of  the  fiscal  shall  have  direct  charge  of  the  records 
f  that  office,  and  shall  render  the  fiscal  services  similar  to  those 

referred  to  in  the  preceding  article  in  regard  to  the  clerks  of  the 
secretary. 

XXX.  The  ' 4  alguaciles  "  and  doorkeepers  shall  discharge  the  duties 
prescribed  in  article  279  of  The  Digest  for  such  employees. 

XXXI.  The  president  of  the  court  shall  regulate  the  duties  of  the 
"alguaciles"  doorkeepers,  and  laborers  in  such  a  manner  as  he  may 
deem  proper.     The  fiscal  shall  do  the  same  with  regard  to  his  subor- 
dinate employees. 


438  LAW    OF    CIVIL    PROCEDURE. 

APPOINTMENT,  TERM  OF  OFFICE,  PRIORITY,  POSSESSION  OF  OFFICE, 
OATHS  OF  OFFICE,  AND  SALARIES  OF  FUNCTIONARIES,  EMPLOYEES, 
AND  SUBORDINATES  IN  THE  SUPREME  COURT. 

XXXII.  The  appointment  of  all  officers  of  the  supreme  court,  with 
the  exception  of  the  subordinate  employees,  shall  be  made  by  the 
military  governor  on  the  recommendation  of  the  secretary  of  justice. 

XXXIII.  Seniority  and  precedence  with  officers  of  the  same  grade 
shall  be  determined  by  date  of  appointment;  and  if  the  incumbents 
shall  have  been  appointed  by  the  same  decree,  all  will  be  considered 
as  of  equal  rank  and  the  order  of  precedence  will  be  determined  by 
age. 

XXXIV.  The  president,  justices,  fiscal  and  assistant  fiscals  shall, 
upon  the  inauguration  of  the  court,  make  oath  before  the  military 
governor  of  the  island  in  the  form  that  may  be  required,  and  shall 
take  possession  of  their  offices,  the  court  sitting  in  public  administra- 
tive session.     The  secretary  and  deputy  clerks  shall  likewise  take  oath 
and  assume  charge  of  their  duties  before  the  court  in  public  session, 
as  above. 

XXXV.  The  annual  salaries  of  all  the  officers  of  the  supreme  court 
shall  be  as  follows,  and  shall  be  payable  monthly  in  United  States 
money  or  its  equivalent: 

The  president,  six  thousand  dollars. 

The  fiscal,  five  thousand  seven  hundred  and  fifty  dollars. 

The  associate  justices,  five  thousand  five  hundred  dollars  each. 

The  assistant  fiscals,  five  thousand  dollars  each. 

The  secretary  or  chief  clerk,  four  thousand  dollars. 

The  deputy  clerks  of  the  court,  two  thousand  five  hundred  dollars. 

The  clerks  of  the  secretary  and  of  the  fiscal,  one  thousand  dollars. 

Other  clerks,  six  hundred  dollars  each. 

The  doorkeeper  and  "  alguaciles"  four  hundred  and  fifty  dollars. 

Laborers,  three  hundred  dollars  each. 

Should  the  court  or  the  fiscal  deem  it  necessary  they  may  require 
one  of  the  last-named  clerks  of  the  secretary's  office  and  of  the  fiscal's 
office  to  be  stenographers,  in  which  case  they  shall  have  an  annual 
salary  of  one  thousand  dollars. 

XXXVI.  The  court  shall  be  granted  fifteen  hundred  dollars  annu- 
ally, in  United  States  money  or  its  equivalent,  for  the  purchase  of 
material.     This  amount  shall  be  distributed  between  the  offices  of  the 
president  and  the  fiscal,  in  such  proportion  as  may  be  decided  by  the 
court  in  administrative  session.     The  president  and  fiscal  shall  have 
authority  to  disburse  their  respective  amounts  in  such  manner  as  they 
may  deem  proper. 


-. 


LAW    OF    CIVIL    PROCEDURE.  439 

QUALIFICATIONS  AND    REQUIREMENTS    FOR   APPOINTMENT   TO    OFFICE    IN 

THE    SUPREME   COURT. 

XXXVII.  To  be  eligible  for  appointment  to  the  office  of  president, 
justice,  fiscal,  assistant  fiscal,  secretary,  or  deputy  clerk  of  the  supreme 
court,  the  following  requirements  must  be  complied  with: 

1.  The  person  must  be  a  Cuban,  or  declare  on  oath  that  he  accepts 
Cuban  citizenship,  provided  he  be  a  person  included  within  the  pro- 
visions of  article  9  of  the  treaty  of  Paris  of  December  10,  1898. 

2.  He  must  be  of  age — that  is,  more  than  twenty-three  years  of  age. 

3.  He  must  be  a  lawyer. 

4.  He  must  not  labor  under  any  of  the  disqualifications  or  incapaci- 
ties herein  stated. 

XXXVIII.  The  following  persons  shall  not  be  appointed  to  any  of 
the  aforesaid  offices: 

1.  Those  mentally  or  physically  unsound. 

2.  Those  against  whom  true  bills  have  been  found  on  any  indictment 
whatever. 

3.  Those  who  have  been  sentenced  to  any  "pena  correccionaV  or 
"  qflictiva"  unless  he  shall  have  duly  completed  such  penalty,  or  shall 
have  been  totally  pardoned. 

4.  Those  who  have  served  a  sentence  for  any  offense,  which,  by 
reason  of  the  nature  of  the  offense  itself,  or  the  character  of  the 

nalty.  would  injure  the  reputation. 

5.  Those  who  are  bankrupt,  or  who  have  made  assignments  and 
have  not  been  discharged. 

6.  Those  persons,  not  merchants,  who  have  made  assignments  for 
the  benefit  of  creditors  until  their  good  faith  shall  have  been  adjudged. 

7.  Debtors  to  the  public  funds  as  " second  contributors." 

8.  Persons  of  immoral  or  vicious  habits,  and,  in  general,  those 
whose  acts  of  omission  or  commission,  though  not  punishable  by  law, 
give  them  an  unsavory  reputation. 

XXXIX.  The  offices  mentioned  in  Article  XXXVII  are  incom- 
patible with — 

1.  The  exercise  of  any  other  jurisdiction  whatever. 

2.  The  holding  of  any  other  office  or  position  of  the  government  of 
a  province  or  municipality. 

3.  Employment  as  a  clerk  or  in  any  other  subordinate  position  in 
any  other  tribunal  or  court. 

XL.  Articles  76  to  79,  inclusive,  of  the  digest  are  declared  appli- 
cable to  the  supreme  court,  but  the  reference  made  in  article  77  to 
article  75  shall  be  understood  as  relating  to  the  preceding  article  of 
this  decree. 

XLI.  The  president  and  justices  of  the  supreme  court,  as  well  as  the 
fiscal  and  the  assistant  fiscals,  shall  not  practice  the  business  of  lawyer, 


440  LAW    OF    CIVIL    PROCEDURE. 

solicitor,  or  notary  public ;  they  shall  not  engage  in  any  industrial, 
mercantile,  or  speculative  pursuits  in  the  name  of  themselves,  their 
wives,  or  other  persons,  nor  shall  they  take  part  in  any  enterprise, 
such  as  a  commercial  company  or  corporation,  as  partner,  director, 
managing  partner,  superintendent,  or  counsel.  Violation  of  this  rule 
shall  be  considered  as  resignation  of  office. 

XLIL  Neither  the  secretary  nor  any  clerk  of  the  court  shall  prac- 
tice law  or  be  a  solicitor  or  a  notary  public.  Violation  of  this  rule 
shall  be  considered  as  a  resignation  of  office. 

XLIII.  To  be  a  subordinate  employee  of  the  court,  the  person  must 
possess  the  first  two  requirements  of  Article  XXXVII  of  this  decree, 
must  be  able  to  read  and  write,  must  be  of  good  moral  character,  arid 
free  from  any  of  the  first  four  disqualifications  enumerated  in  Article 
XXXVIII. 

O.  H.  ERNST, 
Brigadier-  General  of  Volunteers, 

Acting  Chief  of  Staff. 


No.  63. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  May  25,  1899. 

The  military  governor  of  Cuba  directs  the  publication  of  the  fol- 
lowing order: 

I.  Hereafter  the   so-called  votos  reservados  of    the  justices  of  a 
court,  who  do  not  agree  with  the  decision  of  the  majority,  shall  be 
public,  and  shall  be  recorded  in  the  book  of  decisions  in  the  same  man- 
ner as  the  decision  itself,  but  the  dissenting  opinions  shall  be  signed 
only  by  the  dissenting  justices. 

II.  Such  dissenting  opinions  shall  hereafter  be  known  as  votos  par- 
ticulares,  and  shall  be  entered  in  the  original  records  in  the  same  man- 
ner as  the  judgments  and  immediately  after  them.     When  the  inter- 
ested parties  are  notified  of  the  judgments,  they  shall  likewise  be 
informed  of  the  votos particulars  given  in  the  case. 

III.  The  above  provisions  shall  apply  to  dissenting  opinions  in  all 
rulings  of  the  court.     The  manner  of  recording  such  opinions  and  of 
notifying  interested  parties  shall  be  the  same  as  that  usually  followed 
in  such  .cases,  except  that  dissenting  opinions  shall  be  signed  only  by 
the  dissenting  justices. 

ADNA  R.  CHAFFEE, 
Brigadier-  General,  Chief  of  Staff. 


LAW    OF    CIVIL    PROCEDURE.  441 

No.  66. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  May  31,  1899. 

The  military  governor  of  Cuba  directs  the  publication  of  the  fol- 
lowing order: 

I.  Hereafter  civil  marriages  only  shall  be  legally  valid.     The  con- 
tracting parties  may  conform  to  the  precepts  of  whatever  religion  they 
may  profess,  in  addition  to  the  formalities  necessary  to  contract  the 
civil  marriage. 

II.  The  officials  in  charge  of  the  execution  of  the  laws  respecting 
marriage  shall  not  accept  as  legal  the  written  license  or  consent  of  the 
parent,  when  the  same  shall  have  been  taken  before  an  ecclesiastical 
notary,  nor  shall  any  such  certificate  be  accepted  which  is  not  attested 
by  the  civil  functionaries. 

III.  Clergymen  of  the  different  religious  denominations  represented 
in  this  island,  in  performing  the  ceremony  of  marriage,  shall  not  be 
required  to  take  other  action  than  that  imposed  upon  them  by  their 
respective  religious  beliefs;  but  the  performance  of  this  ceremony 
shall  have  no  civil  effect. 

IV.  All  marriages  heretofore  solemnized  in  the  island  of  Cuba  shall 
be  deemed  and  adjudged  to  be  valid,  and  the  validity  thereof  shall  in 
nowise  be  affected  by  any  want  of  authority  in  the  person  solemniz- 
ing the  same   if  consummated  with  a  full  belief  on  the  part  of  the 
persons  so  married,  or  either  of  them,  that  they  were  lawfully  joined 
in  wedlock:  Provided,  That  such  marriage  shall   be  duly   recorded 
within  a  period  of  one  year  from  the  date  of  this  order. 

Record  of  such  marriages  shall  be  made  upon  presentation  of  satis- 

tory  proof  thereof. 

The  said  marriages  shall  be  proved  by  the  presentation  of  docu- 
mentary evidence  of  the  same.  If  no  such  proof  can  be  furnished 
the  fact  of  the  marriage  may  be  established  in  the  form  prescribed  in 
articles  2001  to  2008,  both  inclusive,  of  the  Law  of  Civil  Procedure, 
by  the  declaration  of  the  functionary  performing  the  ceremony,  and 

<"  the  witnesses  thereto,  or  by  such  other  proofs  as  the  law  allows. 
VI.  The  regulations  to  be  observed  in  recording  marriages  under 
is  order  will   be  issued  by  the   secretary  of  justice  and  public 
instruction. 

VII.  The  fee  for  performing  the  ceremony  of  marriage  shall  be  one 
dollar  in  United  States  money  or  its  equivalent. 

VIII.  All  decrees,  orders,  laws,  or  parts  thereof  in  conflict  with  the 
provisions  of  this  order  are  hereby  revoked. 

ADNA  R.  CHAFFEE, 
Brigadier-  General,  Chief  of  Staff. 


i 


442  LAW    OF    CIVIL    PROCEDURE. 

No.  69. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana^  June  3,  1899. 

The  military  governor  of  Cuba  directs  the  publication  of  the  follow- 
ing order: 

I.  The  order  of  April  24,  1899,  whereby  an  extension  of  two  years, 
terminating  on  the  first  day  of  May,  1901,  was  granted  for  the  collec- 
tion and  enforcement  of  the  obligations  therein  stated,  and  contracted 
before  the  thirty-first  day  of  December,  1898,  is  hereby  modified  as 
specified  in  the  following  articles: 

II.  Except  as  otherwise  prescribed  in  this  order  an  extension  of  two 
years,  terminating  on  the  first  day  of  May,  1901,  is  granted  for  the 
collection  and  enforcement  on  real  estate  or  its  products  of  all  obliga- 
tions, whether  or  not  secured  by  mortgage  or  any  other  security  on 
real  property :  Provided,  That  this  extension  shall  not  apply  to  liabili- 
ties contracted  since  the  thirty-first  day  of  December,  1898. 

III.  The  said  extension  shall  be  for  one  year  only,  terminating  on 
the  first  day  of  May,  1900,  on  all  obligations,  whether  or  not  secured 
by  mortgage,  where  it  may  be  necessary  to  enforce  collection  through 
levy  and  sale  of  city  real  property,  or  of  rural  property  in  a  condition 
of  normal  production;  but  creditors  may  institute  suit  at  law  to  collect 
interest  due  on  all  obligations,  whether  or  not  secured  by  mortgage, 
and  on  censos  or  ground  rents,  provided  that  said  interests  shall  have 
accrued  since  the  thirty-first  day  of  December,  1898,  and  that  in  case 
of  default  of  payment  collection  shall  be  made  on  the  rents  only  of 
said  city  property  or  on  the  rents  or  products  of  rural  property  in  a 
condition  of  normal  production. 

IV.  At  the  expiration  of  the  said  year  of  extension  creditors  shall 
be  at  liberty  to  institute  suit  to  recover  principal,  interest,  and  costs 
due  and  unpaid  on  said  date  or  that  may  thereafter  become  due,  with- 
out restriction  or  limitation  of  any  kind,  so  far  only  as  city  property 
or  the  rural  property  mentioned  in  the  preceding  article  is  concerned. 

V.  Property,  either  urban  or  rural  belonging  to  debtors  who  may 
have  been  declared  bankrupt  or  who  may  have  made  assignment  for 
the  benefit  of  creditors  shall  not  be  protected  from  the  action  of  cred- 
itors, nor  included  in  the  benefits  of  the  extension  hereby  ordered 
when  the  proceedings  of  bankruptcy  or  assignment  for  the  benefit  of 
creditors  shall  have  been  initiated  prior  to  the  sixteenth  day  of  May, 
1896. 

VI.  In  like  manner  city  or  rural  property,  in  regard  to  which  final 
judgment  of  judicial  sale  shall  have  been  rendered  prior  to  the  six- 
teenth day  of  May,  1896,  either  in  an  ordinary  action  or  in  a  special 
executive  proceeding,  shall  not  be  exempt  from  the  legal  action  oi 
creditors  who,  as  regards  such  property,  may  freely  institute  suil 
without  restriction  or  limitation  of  any  kind. 


LAW    OF    CIVIL    PEOCEDUBE.  443 

VII.  In  like  manner  the  provisions  of  the  extension  granted  shall 
not  apply  to  rural  property  abandoned  by  its  owners,  nor  to  property 
left  uncultivated  during  the  remainder  of  the  present  year.     Property 
will  be  considered  thus  abandoned  in  cases  wherein  the  owner  shall  be 
absent  from  the  country  without  having  provided,  through  the  appoint- 
ment of  an  attorney,  manager,  or  any  other  similar  agency,  for  the 
management  and  control  of  his  property. 

VIII.  It  shall  be  lawful  in  all  cases  for  creditors  to  take  such  judicial 
action  as  the  law  may  entitle  them  to,  so  far  only  as  may  be  necessary 
to  secure  their  right  of  priority  in  regard  to  other  creditors,  through 
the  attachment  of  the  property  and  the  record  of  such  action  in  the 
registry  books. 

Said  judicial  action,  however,  and  the  attachment  of  the  property, 
shall  not  confer  on  the  creditor  any  right  to  prosecute  his  suit  otherwise 
than  as  prescribed  in  this  order. 

IX.  The  provisions  of  this  order  shall  not  apply  to  those  debts,  for 
the  collection  of  which  the  creditor  may  have  obtained  the  control  and 
administration  of  the  property  of  the  debtor  in  conformity  with  the 
provisions  of  article  1503  of  the  Law  of  Civil  Procedure. 

X.  All   liabilities  for  costs,  either  incurred,  or  which  may  hereafter 
be  incurred,  in  suits  against  debtors,  shall  be  collected  and  enforced 
under  the  restrictions  and  limitations  prescribed  in  this  order,  for  the 
liabilities  in  which  said  costs  may  accrue. 

XI.  In  all  proceedings  against  the  products  or  rents  of  rural  prop- 
erty, the  creditor  shall,  at  the  time  of  filing  his  claim,  present  a  state- 
ment from  the  alcalde  of  the  municipality  in  which  the  property  may 
be  situated,  certifying  that  said  property  is  in  a  condition  of  normal 
production.     The  alcade  issuing  such  certificates  shall  state  therein  the 
facts  and  grounds  on  which  he  bases  his  conclusions.     If  the  alcalde 
should  not  think  that  the  property  is  in  the  condition  claimed  by  the 
creditors,  he  shall  so  state  in  writing. 

XII.  Rural  property  shall  be  deemed  in  a  condition  of  normal  pro- 
duction, when,  besides  the  fact  that  its  plant  and  machinery  are  in 
good  condition,  it  shall  have  produced  either  in  rent  or  products  dur- 
ing the  agricultural  year  of  1898  to  1899  more  than  50  per  cent  of  the 
amount  of  rents  or  products  obtained  from  the  said  property  in  the 
agricultural  year  of  1894  to  1895. 

XIII.  The  certificate  issued  by  the  alcade  under  Article  XI  of  this 
order  shall  not  be  conclusive  evidence  of  the  fact  therein  stated,  and 
it  shall  be  lawful,  therefore,  for  the  debtor  to  submit  his  denial  of  said 
statements.     The  issue  thus  raised  shall  be  tried  according  to  the  pro- 
visions for  special  or  incidental  proceedings  in  Articles  740  et  seq.,  of 
the  Law  of  Civil  Procedure,  and  the  action  of  the  creditor  will  be  stayed 
until  final  decision  shall  be  rendered.     The  burden  of  proof  as  to  the 
fact  that  the  production  of  the  property  has  exceeded  the  50  per  cent 


444  LAW    OF    CIVIL    PKOCEDUKE. 

mentioned  in  Article  XII  of  this  order  shall  be  on  the  creditor.  The 
debtor  shall  submit  his  denial  within  ten  days  after  the  notice  of  the 
order  of  the  judge  issuing  execution  against  the  rent  and  products  of 
the  property  in  question. 

XIV.  In  the  proceedings  mentioned  in  Article  XIII  of  this  order  no 
recourse  may  be  had  from  the  decision  of  the  audiencia,  which  decision 
shall  be  final. 

XV.  When  city  property,  on  the  rents  of  which  the  creditor  may 
have  a  right  to  enforce  the  collection  of  interest  as  prescribed  in  Article 
III  of  this  order,  is  occupied  by  the  debtor  or  by  some  other  person 
not  paying  rent,  or  which  may  be  attached  by  another  creditor  without 
a  pref  erent  right,  the  creditor  shall  have  the  right  to  take  such  judicial 
action  as  the  laws  may  entitle  him  to,  in  order  so  to  administer  the 
said  property  that  it  may  produce  adequate  rents. 

ADNA  R.  CHAFFEE, 
Brigadier-  General,  Chief  of  Staff. 


No.  92. 

HEADQUARTERS  DIVISION  OF  CUBA,  * 

Havana,  June  26,  1899. 

The  Military  Governor  of  Cuba  directs  the  publication  of  the  fol- 
lowing order: 

I.  In  order  to  determine  the  cases  in  which  appeal  for  annulment  of 
judgment  may  be  had  in  civil  suits,  the  provisions  of  articles  1687  to 
1695,  both  inclusive,  of  the  Law  of  Civil  Procedure,  shall  remain  in 
force  as  expressed  in  the  said  law. 

II.  To  determine  the  cases  in  which  appeal  for  annulment  of  judg- 
ment may  be  had  in  criminal  suits,  the  provisions  of  articles  847  to 
854,  both  inclusive,  and  of  910  to  915,  both  inclusive,  of  the  Law  of 
Criminal  Procedure  shall  likewise  remain  in  force. 

III.  The  time  allowed  to  establish  an  appeal  for  annulment  of  judg- 
ment, in  civil  as  well  as  in  criminal  suits,  as  well  as  appeals  for  error 
in  law  or  legal  doctrine  or  defect  in  form,  shall  be  five  legal  days,  not 
subject  to  extension,  counting  from  the  date  of  the  last  notification  of 
the  decision  against  which  appeal  is  made.     If  notice  of  appeal  be  not 
given  within  the  said  period,  the  decision  shall  be  final. 

IV.  The  appeals  for  annulment  referred  to  in  the  preceding  article 
shall  be  established  within  the  time  indicated  in  said  article,  before 
the  judge  or  court  which  may  have  rendered  the  decision  against  which 
appeal  is  made. 

V.  In  the  petition  for  appeal  shall  appear: 

1  See  Order  No.  114,  p.  464. 


LAW    OF    CIVIL    PROCEDURE.  445 

1.  The  date  of  the  notification  of  the  decision  to  the  petitioner  and 
that  of  the  last  notification  to  any  of  the  parties  in  the  suit. 

2.  That  of  the  presentation  of  the  petition  itself. 

3.  The  legal  ground  for  the  appeal. 

4.  If  it  is  a  question  of  appeal  for  error  in  law  or  legal  doctrine,  the 
law  or  the  doctrine  infringed  shall  be  cited  with  clearness  and  preci- 
sion, and  in  what  respect  they  have  been  infringed.     When  the  appeal 
is  based  on  more  than  one  point,  these  shall  be  separately  stated. 

5.  If  it  is  a  question  of  appeal  for  defect  in  form,  it  must  be  stated 
in  what  the  defect  consists,  and  what  steps  have  been  taken  to  correct 
it;  should  it  not  have  been  possible  to  take  such  steps,  it  shall  be  so 
stated,  with  the  reason  therefor. 

VI.  In  no  case,  either  in  criminal  or  civil  suits,  shall  there  be  any 
obligation  on  the  part  of  the  appellant  to  make  any  deposit  whatever 
for  the  admission  of  his  appeal. 

VII.  The  court  which  has  rendered  judgment,  and  before  which  the 
petition  for  appeal  may  have  been  presented,  shall  examine  without 
hearing  the  parties  concerned,  and  shall  see: 

1.  If  the  appeal  has  been  made  against  a  final  judgment,  or  one 
which  should  have  such  character,  or  against  a  ruling  which  might 
legally  be  susceptible  of  appeal. 

2.  If  the  appeal  has  been  requested  within  the  legal  limit  of  time. 

3.  If  it  is  based  on  any  of  the  causes  specified  in  articles  1690  and 
1691  of  the  Law  of  Civil  Procedure,  or  in  articles  849, 911,  912  of  the 
Law  of  Criminal  Procedure,  and  the  corresponding  paragraphs  850, 
851,  852,  and  853  of  the  law  itself. 

4.  In  a  case  of  appeal  for  error  in  law  or  legal  doctrine,  whether  in 
the  petition  for  appeal,  the  laws  or  legal  doctrines  supposed  to  have 
been  infringed  are  stated  with  clearness  and  precision,  and  wherein 
they  have  been  infringed. 

5.  If  the  appeal  be  for  defect  in  form,  the  court  will  see  if  due 
exception  has  been  taken  in  cases  wherein  such  appeal  may  be  possible 
under  the  law. 

6.  If  appeal  be  made  in  a  criminal  case,  the  court  will  see  whether 
or  not  the  appellant  be  included  in  any  of  the  cases  enumerated  in 
article  854  of  the  Law  of  Criminal  Procedure. 

7.  Whether  in  the  petition  are  stated  the  other  requirements  speci- 
fied in  Article  V. 

If  all  these  conditions  be  fulfilled,  the  court  shall  render  decision 
within  three  days,  admitting  the  appeal  and  giving  notice  to  the  par- 
ties concerned  for  their  appearance  before  the  supreme  court.  The 
period  set  for  such  appearance,  which  shall  be  without  extension, 
shall  be  ten  days  when  appeal  is  made  against  the  judgments  of  the 
audiencias  of  Havana,  Matanzas,  Santa  Clara,  and  Pinar  del  Rio,  and 
twenty  days  if  against  decisions  of  the  audiencias  of  Puerto  Principe 


446  LAW    OF    CIVIL    PROCEDURE. 

and  Santiago  de  Cuba.  The  same  rule  shall  apply  if  appeal  be  made 
against  decisions  of  a  judge  exercising  jurisdiction  within  these  prov- 
inces, respectively. 

VIII.  If  appeal  should  have  been  made  for  error  in  law  or  legal 
doctrine,  the  court,  on  admitting  it,  shall  order  that  there  be  delivered 
to  the  appellant  within  five  days  a  certified  literal  copy  of  the  decision 
given  and  of  the  negative  votes  or  votos  particular  es,  should  there 
have  been  such  in  the  case,  and  also  the  decision  of  the  court  of  pri- 
mera  instancia,  if  in  the  latter  there  may  have  been  accepted  and  not 
textually  reproduced  all  or  any  of  their  " resultandos"  and  "  conside- 
randos"  as  well  also  as  the  petition  by  which  the  appeal  is  made  and 
the  ruling  admitting  the  appeal.     It  shall  order,  further,  that  the 
original  brief  shall  be  forwarded  directly  to  the  supreme  court  when, 
by  the  nature  of  the  case,  such  brief  has  been  made. 

The  period  to  elapse  before  appearance  shall  not  begin  to  count 
until  the  day  following  that  in  which  the  appellant,  who  shall  be  the  last 
notified,  shall  have  received  the  certified  copy  above  provided  for, 
the  date  for  said  appearance  being  noted  on  the  certificate  itself. 

IX.  If  appeal  should  have  been  made  for  defect  in  form,  the  court, 
on  admitting  it,  will  order  the  documents  in  the  case  to  be  forwarded 
to  the  supreme  court.     The  period  to  elapse  prior  to  appearance  shall 
begin  to  count  as  soon  as  the  appellant  shall  have  been  notified,  he 
being  the  last  notified. 

X.  When  the  appellant  may  have  obtained  a  declaration  of  poverty 
in  his  favor,  or  may  have  been  defended  as  insolvent,  in  any  criminal 
case,  he  may  ask  that  the  aforesaid  certificate,  which  must  be  delivered 
to  the  appellant  in  appeals  for  error  in  law  or  legal   doctrine,  be 
delivered  de  'oficio;  and  in  every  case  he  may  designate  counsel  to 
argue  said  appeal  before  the  supreme  court,  or  he  may  ask  that  such 
counsel  be  assigned  by  the  court.     These  requests,  as  well  as  the  desig- 
nation of  counsel,  must  be  made  by  postscript  to  the  document  in  which 
appeal  is  requested,  in  order  that  due  note  of  the  certificate  be  made 
in  cases  of  appeal  for  error  in  law  or  legal  doctrine,  or  of  the  original 
papers  in  cases  of  appeal  for  defect  in  form. 

XI.  If  in  the  petition  made  any  one  of  the  conditions  expressed  in 
Article  VII  should  be  unfulfilled,  the  court  before  which  the  request 
is  made  shall,  within  three  days,  deny  the  appeal.    Against  this  ruling 
may  be  had  only  the  recourse  of  qiieja.     In  these  instruments  will  be 
expressed  the  exact  date  of  the  ruling,  of  the  notification,  and  of  the 
presentation  of  the  petition  for  appeal. 

XII.  Whenever  an  appeal  for  annulment  is  allowed,  the  court  which 
may  have  admitted  it  shall  officially  communicate   the  fact  to  the 
supreme  court,  informing  it  of  the  date  set  for  appearance. 

XIII.  The  admission  of  the  appeal  for  annulment  shall  prevent  the 
execution,  either  in  whole  or  in  part,  of  the  judgment  appealed  from. 


LAW    OF    CIVIL    PEOCEDUEE.  447 

This  rule  does  not  admit  other  exceptions  than  that  of  placing  a  pris- 
oner at  liberty,  if  the  finding  in  a  criminal  case  should  be  "  not  guilty;" 
and  in  civil  cases,  in  which  the  party  in  whose  favor  judgment  may  have 
been  rendered,  shall  give  bond  sufficient  in  the  judgment  of  the  court 
to  correspond  with  what  he  would  receive  should  the  annulment  be 
declared.  The  amount  of  this  bond  shall  be  fixed  by  the  court  at  its 
discretion,  but  on  its  responsibility. 

XIV.  A  certified  copy  of  the  decision  denying  appeal,  as  well  as  of 
the  petition  for  appeal,  shall  be  delivered  to  the  appellant,  with  the 
decision,  in  order  that  he  may  appeal  in  queja  to  the  supreme  court. 
The  date  of  delivery  of  this  copy  shall  be  noted  thereon. 

XV  In  the  copy  referred  to  in  the  preceding  article  it  shall  be 
stated  whether  or  not  the  appellant  has  had  a  declaration  of  poverty 
in  his  favor,  or  whether  or  not  he  has  been  defended  as  insolvent  in  a 
criminal  suit,  if  the  appeal  be  made  in  such  a  case. 

XVI.  Within  two  days  after  the  delivery  of  this  copy  the  appellant 
for  annulment  of  judgment  shall  notify  the  court  against  whose  deci- 
sion he  appeals  that  he  is  going  to  appeal  en  queja  to  the  supreme 
court.     The  court  will  then  consider  the  notification  as  duly  made  and 
will  cause  the  parties  to  the  suit  to  be  notified.     The  period  for  estab- 
lishing such  appeal  shall  be  either  ten  or  twenty  days,  not  subject  to 
extension,  as  provided  in  Article  VII,  according  to  the  residence  of 
the  court  against  whose  judgment  appeal  for  annulment  has  been  made. 
These  periods  shall  be  counted  from  the  date  of  the  last  notification, 
which  shall  be  that  made  to  the  appellant.     If  the  notice  be  not  given, 
or  the  recourse  of  queja  not  taken  within  said  period,  the  judgment 
shall  be  deemed  final. 

XVII.  When  notification  of  intention  to  appeal  in  queja  has  been 
given,  the  court  which  rendered  the  judgment  shall  transmit  to  the 
supreme  court,  de  ojicio,  a  certified  copy  of  the  notifications  referred 
to  in  the  preceding  article. 

XVIII.  Within  the  above-expressed  period  of  ten  or  twenty  days 
petition  for  appeal  should  be  made  before  the  supreme  court,  in  writ- 
ing;  the  original  documents  shall  be  forwarded,  and  as  many  copies 
of    both  papers   as   there  are  parties  in  the  suit,  including  one  for 
the  fiscal,  in  both  criminal  and  civil  causes. 

XIX.  The  interested  parties  may  appear,  either  to  sustain  admitted 
appeals  for  annulment  or  to  establish  the  recourse  of  queja,  either  in 
person  or  by  representative.     Such  representative  must  reside  in  the 
capital  of  the  island,  at  least  during  the  progress  of  the  suit,  and  may 
be  a  lawyer  in  the  exercise  of  his  profession,  or  any  person  in  the  full 
enjoyment  of  his  civil  rights,  provided  he  can  read  and  write  the  Span- 
ish language.     So  far  as  they  are  applicable,  the  provisions  regarding 
procuradores,  contained  in  articles  5,  6,  and  9  of  the  Law  of  Civil  Pro- 
cedure, except  so  far  as  these  relate  to  judicial  expenses,  shall  extend 
to  the  aforesaid  representatives. 


448  LAW    OF    CIVIL    PROCEDURE. 

In  civil  suits  these  representatives  must  present  a  formal  power  of 
attorney.  In  criminal  suits  it  will  be  sufficient,  when  appeal  is  made 
by  the  accused,  that  the  representative  be  appointed  in  the  instrument 
pertaining  to  the  case,  and,  in  default  of  express  acceptance,  appear- 
ance by  name  of  the  one  who  may  have  been  designated  will  be  taken 
as  an  indication  of  his  acceptance.  In  such  cases  the  representative  of 
the  private  accuser,  or  of  the  person  instituting  a  civil  action,  or 
of  the  parties  civilly  responsible,  must  present  a  written  power  of 
attorne}7. 

The  decision  of  the  court  shall  be  imparted  to  the  interested  party 
in  person  or  to  his  attorney  within  the  period  and  according  to  the 
provisions  of  article  260  and  the  first  paragraph  of  article  264  of  the 
Law  of  Civil  Procedure.  If  the  party  or  his  attorney  should  not 
appear,  the  notification  shall  be  made,  with  full  legal  effect,  in  open 
court. 

XX.  When  the  appellant  comes  under  one  of  the  cases  foreseen  in 
Article  X  hereof,  he  may  request,  in  the  document  in  which  he  sig- 
nifies his  intention  to  appeal  en  queja,  that  the  certified  copy,  which  he 
will  return  in  this  case,  be  transmitted  officially  to  the  supreme  court; 
and  in  a  postscript  he  will  designate  a  lawyer  to  appeal  in  queja,  or  he 
will  ask  that  one  be  designated  de  qficio.     The  court  shall  order  that 
to  the  certified  copy  a  note  be  added  in  which  these  facts  are  stated, 
and  will  order  its  transmission  de  oficio. 

XXI.  The  recourse  of  queja  being  established,  and  the  entire  time 
granted  for  making  it  having  elapsed,  under  Article  XVI,  the  supreme 
court  shall  order  that  the  copies  presented  by  the  appellant,  under 
Article  XVIII,  be  delivered  to  the  other  parties  present,  and  to  the 
fiscal,  and  shall  appoint  a  da}7  for  the  hearing  of  the  case;  the  said 
day  must  be  not  sooner  than  the  fourth  nor  later  than  the  tenth  day 
following  that  marking  the  end  of  the  period  in  which  an  appeal  may 
be  established. 

XXII.  In  the  hearing  of  the  case  the  appellant  shall  speak  first, 
afterward   the   other  parties,   in  the  order  in   which  they  may  have 
appeared,  and  lastly  the  fiscal.     When  the  latter  is  the  appellant  he 
shall  be  heard  first.     No  corrections  of  record  of  any  kind  will  be 
permitted. 

XXIII.  The  supreme  court  shall  decide  the  question  within  three 
days  after  the  hearing,  and  this  decision  shall  be  final.     When  the 
supreme  court   denies  the  recourse  of  queja,  it  will  communicate  this 
fact  to  the  court  against  whose  decision  appeal  may  have  been  made, 
for  the  necessary  action.    When  the  appeal  is  declared  valid,  the  court 
will  order  the  appellant  to  take  the  measures  prescribed  by  Articles 
VIII,  IX,  and  X  hereof,  according  to  the  case. 

XXIV.  The  court  against  whose  decision  appeal  has  been  admitted, 
on  request  of  any  party  to  the  suit,  and  in  case  of  civil  proceedings, 


LAW    OF    CIVIL    PROCEDURE.  449 

may  grant  a  continuation  of  the  case,  notwithstanding  the  notification 
of  intention  to  appeal;  but  if  the  supreme  court  should  deem  the 
appeal  well  grounded,  such  proceedings  will  be  suspended,  excepting 
in  the  case  provided  for  in  Article  XIII. 

XXV.  In  case  of  denial  of  the  recourse  of  queja  the  appellant  shall 
bear  the  costs. 

XXVI.  When  the  appeal  for  annulment  of  judgment  is  admitted, 
the  appellant  shall,  on  presenting  himself  before  the  supreme  court, 
accompany  his  appeal  by  the  following  documents: 

1.  If  he  should  not  appear  in  person,  the  power  of  attorney  accredit- 
ing his  lawful  representative.     From  this  rule  is  excepted  the  case  in 
which  the  accused,  in  a  criminal  cause,  may  have  designated  his  repre- 
sentative in  official  documents,  according  to  the  provisions  of  Article 
XIX,  or  when,  in  appeal  for  defect  in  form,  his  representative  may  be 
accredited  in  the  documents  transmitted. 

2.  In  suits  for  ejectment,  when  the  petitioner  is  the  renter  or  tenant, 
he  will  also  present  the  document  which  proves  the  payment  of  rent, 
as  provided  for  in  article  1564  of  the  Law  of  Civil  Procedure.     If  the 
said  document  be  not  presented  with  the  petition,  nor  during  the 
period  before  the  hearing,  the  supreme  court,  on  appearance  of  appel- 
lant before  the  end  of  this  period,  shall  declare  the  appeal  groundless 
and  the  sentence  final;  this  fact  shall  be  immediately  communicated  to 
the  court  from  which  the  case  was  sent. 

3.  As  many  copies  of  the  petition  and  of  the  documents  accompany- 
ing it  shall  be  furnished  as  may  be  necessary  for  the  interested  parties, 
including  a  copy  for  the  fiscal. 

XXVII.  The  appellant,  having  appeared  before  the  supreme  court, 
shall  await  until  the  entire  period  before  the  date  set  for  the  hearing 
has  elapsed;  the  court  shall  then  grant  to  the  parties  that  may  have 
appeared  fifteen  days  to  obtain  full  knowledge  of  the  proceedings. 
For  this  purpose  there  shall  be  delivered  the  copies  referred  to  in  the 
preceding  article  and  the  record  of  the  proceedings  in  the  case  shall  be 
open  for  examination  in  the  secretary's  office. 

At  the  same  time  the  court  shall  direct  that  the  secretary  officially 
notify  the  court  from  which  appeal  has  been  made  that  the  appellant 
has  appeared  within  the  stated  time.  When  he  shall  not  have  so 
appeared,  the  court  shall  order  the  secretary  to  communicate  to  the 
court  from  which  appeal  was  made  that  its  judgment  has  been  declared 
final. 

XXVIII.  During  the  period  of  fifteen  days  referred  to  in  the  pre- 
ceding articles  the  parties  may  formulate  the  following  petitions: 

1.  The  appellant  may  request  that  there  be  added  to  the  grounds  of 
appeal  for  annulment  expressed  in  his  petition  other  grounds,  which 
shall  be  separately  and  clearly  expressed. 

2.  The  other  parties  may  state  in  separate  and  numbered  paragraphs, 

2901 29 


450  LAW    OF    CIVIL    PEOCEDUEE. 

briefly,  clearly,  and  without  argument,  the  reasons  for  which  they 
believe  the  appeal  should  not  be  granted  if  they  desire  to  oppose  such 
appeal.  The  said  parties  may  state  that  they  are  in  accord  with  the 
appeal  which  has  been  admitted,  and  in  this  case  they  will  state 
whether  they  agree  for  the  same  reasons  as  the  appellant  or  whether 
they  have  other  reasons.  If  they  have  others,  they  will  state  them  in 
the  manner  indicated  in  paragraph  1  of  this  article. 

XXIX.  All  parties  to  the  suit,  whether  appellants  or  not,  may 
solicit  within  the  period  referred  to  in  the  preceding  article  that  the 
tribunal  from  whose  decision  appeal  is  made  be  asked  to  furnish  any 
or  all  of  the  documents  concerning  the  case  when  the  question  is  one 
of  appeal  for  error  in  law  or  legal  doctrine,  provided  that  the  follow- 
ing conditions  obtain : 

1.  That  the  explanation  of  said  documents  in  the  brief  or  in  the 
judgment  appealed  from  be  insufficient  exactly  to  determine  their 
value  and  sense. 

2.  That  having  such  a  direct  and  necessary  bearing  on  the  case,  the 
decision  of  the  appeal  might  depend  upon  their  consideration. 

3.  Any  of  the  parties  may  also  request  that  there  should  be  attached 
to  the  proceedings  certified  copies  of  any  documentary  proof  consid- 
ered in  the  case,  if  the  above-described  conditions  obtain  with  regard 
to  it. 

The  documents  referred  to  in  this  article  shall  be  forwarded  as  cer- 
tified copies,  it  being  stated  in  them  that  the  parties  to  the  suit  agree 
as  to  their  correctness. 

XXX.  Of  the  documents  referred  to  in  the  preceding  section,  as 
well  as  all  those  produced  in  appeals  for  annulment,  as  many  copies 
should  be  presented  as  there  are  parties  to  the  suit,  including  one  for 
the  fiscal. 

XXXI.  When  one  of  the  parties  solicits  the  documents  mentioned 
in  Article  XXIX,  and  the  fifteen  days  provided  for  in  Article  XXVII 
having  elapsed,  and  five  days  more,  during  which  the  other  parties 
shall  present  such  argument  as  they  may  deem  proper,  the  case  will 
pass  to  the  ponente.     On  his  report  the  court  shall,  within  three  days,, 
pronounce  its  decision,  against  which  there  shall  be  no  appeal. 

XXXII.  When  any  one  of  the  parties  objects  to  the  admission  of 
the  appeal,  under  paragraph  2  of  Article  XXVIII,  the  court,  after 
delivering  the  copies  to  the  other  parties,  shall  designate  a  day  for  a 
hearing,  considering  this  the  previous  question.     This  designation  shall 
be  made  in  accordance  with  Article  XXI  in  reference  to  recourse  of 
queja,  so  far  as  fixing  the  date  is  concerned.     The  hearing  shall  take 
place  in  the  manner  prescribed  for  hearing  appeals  of  this  character 
in  Article  XXII,  and  the  decision  shall  be  rendered  within  the  term 
prescribed  in  Article  XXIII.     Against  this  decision  there  shall  be  no 
appeal. 


LAW    OF    CIVIL    PEOCEDURE.  451 

XXXIII.  The  objection  to  the  decision  admitting  the  appeal  shall 
be  decided  before  any  other  question.     If  any  of  the  parties  may  have 
solicited  that  documents  be  furnished  under  Article  XXIX,  this  ques- 
tion shall  be  decided  after  the  decision  of  the  objection  above  referred 
to.     After  the  decision  in  this  case,  measures  will  be  adopted  to  secure 
such  documents,  as  provided  in  the  preceding  articles.     If  the  same 
party  should  object  to  the  admission  of  the  appeal,  and  at  the  same 
time  request  documents,  both  requests  must  be  formulated,  either  in 
one  or  in  separate  papers,  but  always  within  the  fifteen  days  provided 
for  in  Article  XXVII.     In  this  case  the  decision  of  one  question  shall 
be  made,  the  other  waiting  until  the  first  shall  be  decided.     In  all  these 
cases  the  costs  shall  fall  upon  the  party  against  whom  a  decision  is 
rendered. 

XXXIV.  A  decision  declaring  the  appeal  for  annulment  of  judg- 
ment erroneously  admitted,  or  admitted  without  due  grounds,  shall  be 
rendered  in  the  following  cases: 

1.  When  the  appeal  may  not  have  been  made  within  the  legal  period. 

2.  When  the  provisions  of  Article  V  of  this  order  may  not  have  been 
complied  with. 

3.  W^hen  the  conditions  specified  in  Article  VII  may  not  obtain. 

4.  When  the  identity  of  the  representative  of  the  appellant  before 
the  supreme  court  may  not  be  sufficiently  proved,  or  when  the  power 
of  attorney  presented  by  him  should  not  be  sufficient. 

5.  When  the  documents  referred  to  in  the  first  three  paragraphs  of 
Article  XXVI  have  not  accompanied  the  records  of  the  case  presented 
to  the  supreme  court,  and  when  the  decision  mentioned  in  Article  III 
may  not  have  been  officially  pronounced  by  the  court,  which  decision 
must  be  rendered  for  lack  of  compliance  with  the  provisions  therein 
named. 

All  other  objections  to  the  appeal  shall  be  reserved  for  the  hearing 
in  which  shall  be  finally  discussed  the  questions  involved  in  the  case, 
which  questions  will  be  decided  in  the  judgment  rendered,  which  shall 
be  final. 

XXXV.  The  previous  question  having  been  decided,  or  the  fifteen 
days  referred  to  in  Article  XXVII  having  passed  without  this  ques- 
tion having  arisen,  if  the  transmission  to  the  supreme  court  of  the 
documents  referred  to  in  Article  XXIX  has  not  been  requested,  or 
shall  have  been  declared  unnecessary,  or  if  these  documents  have  been 
received  or  requests  for  them  have  been  approved,  the  court  shall 
appoint  a  day  for  the  hearing,  when  the  appeal  shall  be  definitely 
decided.     This  day  shall  be  not  less  than  ten  nor  more  than  twenty 
days  after  the  decision  admitting  the  appeal. 

XXXVI.  The  hearing  shall  take  place  in  the  following  manner: 
The  secretary  or  his  deputy  shall  read,  if  any  of  the  parties  request 

it,  the  decision  of  the  lower  court,  the  brief  in  the  case,  the  documents 


452  LAW    OF    CIVIL    PEOCEDURE. 

which  have  been  requested  and  brought  by  order  of  the  court,  the  part 
of  the  proceedings  in  which  the  defect  in  form  may  have  occurred, 
when  the  appeal  is  of  this  character,  and  the  measures  taken  to  correct 
them.  There  shall  also  be  read,  if  there  were  such,  the  votoa particu- 
lar es  which  may  have  been  given  by  the  justices  of  the  audiencia  who 
were  not  in  conformity  with  the  decision  of  the  majority.  No  requests 
for  the  reading  of  other  documents  shall  be  considered. 

This  reading  having  ended,  the  lawyers  of  the  parties  to  the  suit 
shall  speak,  the  appellant  being  the  first,  then  those  who  have  agreed 
to  the  appeal,  then  those  who  opposed  it,  and  finally  the  fiscal;  in 
cases  where  the  fiscal  may  have  established  the  appeal,  or  may  have 
agreed  to  the  same,  he  shall  speak  at  the  time  provided  for  the  other 
parties  in  the  suit  as  above. 

The  parties  may  make  corrections,  with  respect  only  to  facts,  the 
accuracy  of  which  must  be  established,  and  opinions  which  may  have 
been  attributed  to  them,  in  the  course  of  debate. 

With  this  the  president  shall  declare  the  hearing  of  the  appeal 
ended. 

XXXVII.  The  court  shall  render  judgment  within  a  period  of  ten 
days.  In  said  judgment  the  following  particulars  shall  be  stated: 

1.  The  place  and  date  in  which  the  judgment  was  rendered;  the 
court  from  which  the  appeal  was  made;    the  nature  of  the  suit  or 
cause  in  which  appeal  was  allowed;  the  names,  professions,  and  domi- 
cile of  the  parties  thereto;  the  object  of  the  suit  and  other  general 
circumstances  which  might  be  necessary  to  determine  the  subject  with 
regard  to  which  appeal  was  made. 

2.  Under  the  word  " resultando"  shall  be  written  literally  those  of 
the  decision  appealed  from,  except  such  as  are  manifestly  irrelevant; 
and  there  will  be  added  such  as  may  be  deemed  proper  to  insert. 

3.  The  directory  part  of  the  decision  itself. 

4.  The  grounds  of  annulment  advanced  by  the  parties. 

5.  The  name  of  theponente. 

6.  The  bases  in  law  of  the  decision  rendered  under  the  word  "  con- 
sider ando" 

7.  The  decision. 

Against  this  decision  no  appeal  can  be  made,  excepting  in  cases  of 
revision. 

XXXVILI.  When  the  supreme  court  declares  that  an  appeal  for 
error  in  law  or  legal  doctrine  shall  be  admitted,  it  shall  immediately 
pronounce  the  judgment  with  respect  to  the  question  at  issue,  which 
should  have  been  rendered  by  the  lower  court.  This  judgment  shall 
be  delivered  separately,  but  always  within  the  period  of  ten  days  pro- 
vided for  in  the  preceding  articles. 

XXXIX.  When  an  appeal  is  admitted  for  defect  in  form,  the  pro- 
ceedings shall  be  returned  to  the  lower  court  for  correction,  after  which 


LAW    OF    CIVIL    PROCEDURE.  453 

the  case  will  be  concluded  conformably  to  law.  This  shall  be  inde- 
pendent of  the  corrections  and  remarks  which  may  be  made,  according 
to  the  gravity  of  the  defect  found,  and  which  corrections  and  remarks 
shall  also  be  included  in  the  decree  of  the  court. 

XL.  When  an  appeal  for  annulment  of  judgment  is  declared  ground- 
less, the  costs  of  the  same  shall  be  paid  by  the  appellant,  unless  the 
appellant  be  the  fiscal,  or  unless  the  case  come  under  the  provisions 
of  Article  XLVIL 

XLI.  In  appeals  for  annulment  of  judgment  for  error  in  law  or 
legal  doctrine,  the  supreme  court  may,  for  its  better  understanding, 
call  for  the  original  records  of  the  case.  The  order  for  this  may  be 
given  at  any  time  before  the  date  on  which  it  must  render  judgment. 
Decision  must  be  pronounced  within  ten  days  after  the  receipt  of  the 
records  so  called  for. 

XLII.  Whenever  the  defendant  in  a  criminal  suit  makes  an  appeal 
for  annulment  of  judgment  for  error  in  law  or  legal  doctrine,  the 
decision  granting  such  appeal,  and  that  which  is  made  with  reference 
to  the  main  issue  of  the  case,  shall  be  taken  advantage  of  by  other 
defendants,  so  far  as  it  is  favorable  to  them,  provided  the  same  con- 
ditions and  alleged  grounds  of  appeal  apply  to  them  as  to  the  appellant. 
Their  case  shall  not  be  prejudiced  by  such  parts  of  the  decision  as  may 
be  adverse  to  the  defendant. 

XLIII.  Whenever,  in  a  criminal  suit,  appeal  may  have  been  made 
by  the  defendant,  all  others  who  may  have  been  sentenced  and  who 
may  not  have  appealed  shall  be  allowed,  as  part  of  their  terms  of 
imprisonment,  if  such  have  been  their  sentences,  all  the  time  during 
which  they  may  have  been  imprisoned,  from  the  date  on  which  the 
appeal  was  made. 

XLIV.  Whenever  the  appellant  believes  there  may  have  occurred 
errors  in  law  and  defect  of  form,  which  justify  appeal  on  both 
grounds,  they  must  both  be  duly  made  in  the  same  petition,  in  which 
shall  be  fulfilled  all  the  requirements  of  Article  V  of  this  order. 

XLV.  The  judge  or  court  pronouncing  the  judgment  shall  decide 
on  the  admission  of  one  or  both  of  said  appeals.  If  both  be  admitted, 
the  original  proceedings  shall  be  forwarded  to  the  supreme  court, 
which  shall  consider  both  appeals  jointly  and  include  both  in  a  single 
judgment.  It  shall  not  be  necessary  in  these  cases  to  forward  the 
certificates  required  in  appeals  made  simply  for  error  in  law  or  legal 
doctrine. 

The  same  rule  shall  be  observed  when  one  of  the  parties  shall 
appeal  on  one  ground  and  the  other  on  another. 

XLVI.  If  the  court  from  which  both  appeals  may  have  been  made, 
whether  by  one  or  more  of  the  parties,  shall  deny  the  admission  of 
one  of  them,  the  recourse  of  queja,  made  against  the  denial  shall  be 
decided  before  consideration  of  the  admitted  appeal. 


454  LAW    OF    CIVIL    PROCEDURE. 

XLVII.  Whenever  the  supreme  court,  on  rendering  judgment  in 
one  of  the  cases  referred  to  in  Articles  XLI V  and  XLV,  sustains  an 
appeal  for  defect  in  form,  it  shall  abstain  from  ruling  on  the  appeal 
for  error  in  law  or  legal  doctrine.  Should  the  appeal  for  defect  in 
form  be  declared  invalid,  judgment  shall  be  rendered  on  the  other. 
In  these  cases,  the  costs  shall  not  be  imposed  upon  the  appellant, 
unless  both  appeals  are  declared  groundless. 

XL VIII.  The  rights  granted  to  poor  and  insolvent  persons  by 
Articles  X  and  XX  of  this  order  shall  be  understood  to  belong,  not 
only  to  him  in  whose  favor  a  declaration  of  poverty  may  have  been 
obtained,  but  also  to  the  defendant  in  a  criminal  case  who  may  not 
have  had  property  to  attach  in  cases  where  attachment  is  provided 
for.  To  avail  himself  of  said  rights,  it  shall  be  necessary  that,  on  mak- 
ing the  appeal,  the  declaration  of  poverty  shall  have  been  made  in 
favor  of  appellant,  even  though  in  primera  instancia  only,  or  that 
poverty  be  proved  by  the  fact  that  no  property  was  attached,  as  the 
defendant  possessed  none. 

XLIX.  Whenever  the  appellant  for  annulment  or  in  queja,  referred 
to  in  the  preceding  article,  is  a  prisoner,  all  the  documents  therein 
mentioned  shall  be  transmitted  de  oficio,  unless  the  appellant  should 
expressly  request  their  delivery  to  him  in  order  to  see  that  they  are 
presented  before  the  supreme  court. 

L.  The  person  to  whom  the  said  documents  may  have  been  delivered 
for  the  purpose  indicated  in  the  preceding  article,  if  he  wish  the  right 
to  enjoy  the  benefits  herein  conferred,  must  in  every  case  present  them 
before  the  supreme  court,  asking  that  counsel  be  assigned  him  de 
oficio,  or  simply  designating  him  in  the  petition  by  which  the  said 
documents  are  accompanied.  If  this  should  be  done  within  the  period 
set  for  appearance,  it  shall  be  held  that  the  designation  was  made  in 
due  time,  and  the  provisions  of  the  following  articles  shall  be  com- 
plied with. 

In  appeals  for  annulment  of  judgment  for  defect  in  form,  in  cases 
wherein  the  original  documents  must  be  forwarded  to  the  supreme 
court,  an  insolvent  suitor  who  may  have  appealed  may  also  appear  by 
writing,  in  which  he  designates  counsel  or  requests  such  designation 
de  qficio. 

LI.  When  the  supreme  court  is  in  possession  of  the  certificates 
required  in  the  recourse  of  queja,  or  in  cases  of  appeal  for  error  in  law 
or  legal  doctrine,  or  of  the  original  record  in  cases  of  appeal  for  error 
in  form,  if  the  appellant  should  be  insolvent,  and  have  appointed 
counsel,  the  latter  shall  be  required  to  declare  whether  or  not  he 
accepts  the  charge,  unless  he  should  already  have  done  so  of  his  own 
motion.  In  case  of  acceptance  the  said  counsel  shall  be  considered  the 
appellant's  representative  before  the  supreme  court,  and  the  declara- 
tion of  acceptance  shall  be  considered  equivalent  to  the  written  one 


LAW    OF    CIVIL    PROCEDURE.  455 

referred  to  in  Article  XXVI.  In  appeals  for  annulment  of  judgment 
the  procedure  shall  be  as  provided  for  in  Article  XXVII  et  seq.  The 
appellant's  attorney  shall  receive  all  the  necessary  notifications,  and  all 
business  concerning  the  case  shall  be  transacted  with  him. 

LII.  Whenever  an  insolvent  appellant  may  have  declared  before  the 
lower  court  his  intention  to  appeal  in  queja,  the  attorney  designated, 
after  signifying  his  acceptance  as  prescribed  in  the  preceding  article, 
shall  be  granted  three  days  in  which  to  draw  up  the  petition,  accord- 
ing to  the  provisions  of  Article  XVIII ;  and  thereafter  the  procedure 
shall  conform  to  that  provided  for  in  Article  XIX  et  seq.  In  this 
appeal  also  the  attorney  shall  be  the  appellant's  representative. 

LIII.  In  cases  where  an  insolvent  appellant  may  not  have  designated 
an  attorney,  or  the  one  designated  may  not  have  accepted  the  charge, 
the  court  shall  designate  one  de  qficio,  who  shall  be  fully  informed  as 
to  the  records  of  the  case.  If  the  attorney  so  appointed  thinks  there 
is  no  ground  for  appeal,  he  shall  so  state  within  three  days.  If  this 
period  pass  without  his  making  such  statement,  it  shall  be  considered 
that  he  deems  the  appeal  valid,  and  the  provisions  of  the  preceding 
articles  shall  apply. 

In  recourse  in  queja  the  appeal  must  either  be  established  or  pro- 
nounced to  be  groundless  within  the  period  of  three  days. 

LIV.  If  the  attorney  appointed  de  oficio  deems  the  petition  ground- 
less, he  shall  so  state  in  writing,  and  without  argument,  and  another 
lawyer  shall  be  designated  in  the  case,  with  the  same  duties  as  the  first. 

If  this  second  attorney  concurs  in  the  opinion  of  the  first,  the  fiscal 
shall  be  required  to  give  an  opinion  of  the  case  within  the  period  of 
three  days.  If  he  finds  that  there  is  ground  for  appeal,  he  shall  be 
considered  as  the  appellant's  representative,  and  shall  be  vested  with 
the  corresponding  rights  and  duties. 

LV.  Whenever  the  fiscal  may  have  appeared  in  opposition  to  an 
appeal,  the  requirement  of  the  preceding  article  shall  not  be  neces- 
sary. In  this  case,  as  well  as  in  those  which  he  may  declare  ground- 
less, the  court  shall  refuse  to  admit  the  appeal  and  shall  confirm  the 
judgment  of  the  lower  court,  and  shall  also  direct  that  the  said  court 
be  notified  of  the  decision,  and  that  the  records  be  returned  thereto, 

LVI.  Whenever  the  fiscal  may  have  appealed  on  the  same  grounds 
as  an  insolvent  party,  if  the  two  attorneys  first  appointed  de  oficio 
should  declare  that  no  ground  for  the  appeal  exists,  the  fiscal  shall  be 
considered  without  further  process,  as  the  appellant's  representative. 

Whenever  the  fiscal  may  have  petitioned  for  appeal  on  grounds 
other  than  those  of  the  appellant,  he  shall  conform  to  the  require- 
ments of  Article  LIV. 

LVII.  Petitions  for  annulment  of  awards  made  by  arbitrators  shall 
be  made  before  the  supreme  court.  The  fiscal  shall  have  no  interven- 
tion in  such  cases. 


456  LAW    OF    CIVIL    PROCEDURE. 

LVIII.  The  periods  within  which  said  petitions  may  be  made  shall 
be  those  specified  in  the  last  paragraph  of  Article  VII  of  this  order, 
according  to  the  place  where  the  arbitrators  may  have  made  their 
award,  and  shall  date  from  the  day  of  the  notification  of  same.  The 
petition  shall  be  accompanied  by: 

1.  A  certified  copy  of  the  agreement. 

2.  A  certified  copy  of  the  award,  and  the  notification  of  same  to  the 
appellant. 

If  the  period  of  time  indicated  in  the  agreement  should  have  been 
extended,  and  the  appeal  rest  upon  the  fact  that  the  decision  was  not 
rendered  within  the  specified  time,  a  certified  copy  of  the  order  author- 
izing the  extension  shall  likewise  be  included. 

No  other  document  shall  be  admitted. 

LIX.  The  petition  referred  to  in  the  preceding  article  shall  state 
the  grounds  upon  which  the  appeal  is  based,  from  those  enumerated 
in  No.  3  of  article  1689  of  the  Law  of  Civil  Procedure,  and  the  reasons 
for  the  petition  for  annulment  shall  be  set  forth  in  separate  and 
numbered  paragraphs. 

LX.  Upon  the  making  of  the  appeal  within  the  period  of  time  men- 
tioned in  Article  LVIII,  the  supreme  court  shall  direct  that  the  other 
parties  be  summoned  to  appear  before  it,  in  the  exercise  of  their 
rights,  within  the  same  period  of  ten  or  twenty  days  granted  to  the 
appellant.  At  the  expiration  of  this  time  the  court  without  further 
formalities  shall  set  the  date  for  the  hearing.  The  latter  shall  take 
place  not  sooner  than  ten  days  nor  later  than  twenty  days  from  the 
date  of  the  court's  order. 

LXI.  The  other  parties  may  present  themselves  at  any  time  before 
the  commencement  of  the  hearing.  Should  they  appear,  they  may 
attend  the  hearing,  which  shall  proceed  according  to  the  provisions  of 
Article  XXII  of  this  order. 

LXII.  The  supreme  court  shall  render  judgment  within  five  days 
after  the  hearing.  If  the  petition  be  denied,  the  appellant  shall  pay 
the  costs. 

LXIII.  Whenever  the  supreme  court  finds  that  the  arbitrators  have 
not  made  their  award  within  the  time  specified  in  the  agreement,  it 
shall  annul  their  decision,  and  the  parties  opposing  the  appeal  shall 
pay  the  costs. 

LXIV.  If  the  appeal  is  based  upon  the  ground  that  the  arbitrators 
have  decided  questions  not  submitted  to  their  judgment,  the  award 
shall  be  annulled  in  such  part  or  parts  only  as  may  be  effected  by  said 
questions,  and  the  parties  responsible  for  decision  on  such  extraneous 
issues  shall  pay  the  costs. 

LXV.  Petitions  for  annulment  of  any  sentence,  involving  the  death 
penalty,  except  that  of  the  supreme  court,  shall  be  considered  as 
made  and  admitted  in  favor  of  the  person  so  sentenced. 


LAW    OF    CIVIL    PEOOEDURE.  457 

LXV.I.  A  lower  court  which  may  have  passed  sentence  of  death 
shall  forward  the  original  proceedings  to  the  supreme  court  at  the 
expiration  of  the  period  for  making  appeal,  although  none  of  the 
parties  may  have  petitioned  therefor. 

LXVII.  If  within  five  days  after  receiving  the  case  in  the  Supreme 
Court  the  attorney  appointed  by  the  prisoner  should  appear  and 
request  a  hearing  in  order  to  appeal  the  case,  he  shall  be  admitted  as 
party  thereto.  If  no  such  attorney  should  appear  within  said  period, 
the  court  shall  appoint  one  de,  ofici.o. 

LXVIII.  On  the  admission  of  the  prisoner's  attorney,  or  the  latter's 
appointment  de  qficio  by  the  court,  the  said  attorney  duly  representing 
and  defending  the  accused,  the  court  shall  grant  all  the  parties,  includ- 
ing the  fiscal,  a  period  of  fifteen  days,  to  show  cause,  in  writing,  why 
annulment  of  judgment  should  be  made,  whether  for  defect  in  form 
or  error  in  law.  The  reasons  set  forth  shall  be  in  separate  and  num- 
bered paragraphs,  and  shall  include  all  the  circumstances  which  should 
be  stated  in  a  petition  for  appeal.  If  this  petition  should  have  already 
been  made  before  the  lower  court,  the  reasons  adduced  may  be  ampli- 
fied, or  the  appellant  may  confine  himself  to  those  already  stated  before 
the  said  court. 

LXIX.  The  hearing  shall  be  had  within  the  period  specified  in  article 
XXXV  of  this  order,  when  the  documents  mentioned  therein  have 
been  presented,  or,  if  they  be  not  presented,  it  shall  be  had  after  the 
said  period  has  elapsed.  In  the  subsequent  proceedings  the  provisions 
of  article  XXXVI  et  seq.  on  appeals  in  general  shall  apply. 

LXX.  The  court  may  annul  the  sentence  in  such  cases  for  defect  in 
form  or  for  error  in  law,  even  when  the  right  to  appeal  has  been  deemed 
groundless,  by  the  fiscal  or  the  other  parties  to  the  suit. 

LXXI.  In  cases  wherein  the  court  may  not  have  passed  the  sentence 
of  death  demanded  by  the  accusers,  the  proceedings  for  appeal  shall  be 
as  provided  for  in  the  preceding  articles. 

LXXII.  Whenever  the  supreme  court  declares  that  a  sentence  involv- 
ing the  death  penalty  can  not  for  any  reason  be  annulled,  it  shall  cause 
the  records  of  the  case  to  be  sent  to  the  fiscal  in  order  that  he  may  state 
whether  he  believes  there  is,  in  equity,  any  reason  for  the  nonexecu- 
tion  of  the  sentence  and  for  commutation  of  the  penalty  by  way  of 
grace.  Upon  the  fiscal's  opinion,  and  its  own,  relative  to  the  case,  the 
court  shall  propose  to  the  government  such  decision  as  it  may  deem 
advisable.  For  this  purpose  the  records  shall  be  transmitted  to  the 
secretary  of  justice. 

LXXIII.  Any  party  who  may  have  made  appeal  for  annulment  of 
judgment  may  abandon  it  at  any  stage  of  the  proceedings.  If  such 
party  should  appear  in  person,  he  shall  be  required,  in  the  presence 
of  the  court,  to  ratify  the  document  by  which  he  renounces  the  case. 
If  he  be  represented  by  any  other  person,  the  said  document  must  also 


458  LAW    OF    CIVIL    PROCEDURE. 

be  ratified  by  the  same  party,  unless  a  special  power  of  attorney  for 
such  action  be  presented  to  the  supreme  court. 

Whenever  such  ratification  is  made,  or  power  of  attorney  presented, 
the  court  shall  consider  the  appeal  withdrawn  and  the  appellant  shall 
pay  the  costs.  The  judgment  shall  be  declared  final  and  the  lower 
court  shall  be  informed  thereof.  All  records  shall  be  returned  to  said 
court,  provided  there  be  no  other  party  making  the  appeal.  Only  the 
cases  mentioned  in  preceding  articles,  revoking  sentence  of  death,  shall 
be  excepted. 

LXXIV.  Whenever  two  or  more  similar  appeals  are  made  against 
the  same  judgment,  they  shall  be  combined  and  shall  be  decided  in  a 
single  judgment. 

LXXV.  Parties  to  the  suit,  not  appellants,  may  appear  before  the 
supreme  court  at  any  period  of  the  trial,  and  all  subsequent  proceed- 
ings shall  be  communicated  to  them,  without  reverting  to  foregoing 
proceedings. 

LXXVI.  In  all  appeals  made  for  annulment  of  judgment  imposing 
imprisonment,  it  shall  be  the  duty  of  the  fiscal  to  be  present  at  the 
hearing,  although  he  may  not  be  the  appellant.  In  other  cases  he  may 
be  present  or  not,  as  he  shall  deem  proper.  The  same  will  also  be 
understood  with  regard  to  civil  suits. 

LXXVII.  Parties  to  suits  shall  not  pay  fees  of  any  kind  for  any 
rulings  before  the  supreme  court  in  the  office  of  the  clerk  of  the  said 
court.  The  costs  imposed  in  these  appeals  shall  include  only  the  fees 
of  the  lawyers  who  represent  and  defend  the  parties.  In  case  of 
objection  the  amount  of  said  fees  shall  be  regulated  by  the  court  in 
the  ordinary  manner.  If  any  of  the  parties  shall  have  been  repre- 
sented before  the  court  by  anyone  else  but  his  lawyer,  the  compensa- 
tion of  the  said  persons  shall  not  be  included  in  the  amount  of  the 
costs  imposed. 

LXXVIII.  In  all  decisions  rendered  by  the  supreme  court  in  case  of 
appeal,  except  those  mentioned  in  the  following  paragraphs,  there 
shall  be  required  for  confirmation  of  judgments  appealed  from  a 
majority  vote  of  the  associate  justices  present,  whatever  may  be  their 
number.  To  set  aside  such  judgments,  and  to.  annul  them,  the  con- 
curring vote  of  at  least  four  associate  justices  shall  be  required. 

Four  concurring  votes  shall  be  sufficient  to  impose  a  sentence  of 
imprisonment  for  life,  confirming  in  so  doing  a  judgment  appealed 
from,  but  at  least  five  votes  shall  be  required  to  impose  such  penalty 
by  virtue  of  the  annulment  of  a  judgment  that  may  not  have  imposed  I 
it. 

Four  concurring  votes  shall  be  sufficient  to  confirm  a  death  sentence, 
provided  the  fiscal  should  agree  to  it;  and  if  not,  five  votes  shall  be 
required.  Six  votes  shall  be  necessary  to  impose  a  death  sentence  in 


LAW    OF    CIVIL    PROCEDURE.  459 

cases  wherein  the  lower  court  may  not  have  pronounced  such  sentence, 
whenever  the  fiscal  is  in  favor  of  its  imposition;  if  not,  the  unani- 
mous vote  of  the  seven  justices  constituting  the  court  shall  be 
necessary. 

LXXIX.  Whenever  in  civil  or  criminal  cases  involving  neither  the 
death  penalty  nor  imprisonment,  the  hearing  may  have  been  had 
before  less  than  seven  justices,  and  the  majorities  provided  for  in  the 
preceding  article  have  not  appeared,  a  new  hearing  shall  be  had  before 
the  court,  with  seven  members  present. 

If  the  necessary  majority  should  not  appear  in  the  new  hearing, 
the  provisions  of  article  357  of  the  Law  of  Civil  Procedure  shall  be 
followed  in  civil  cases,  and  those  of  articles  163  and  164  of  the  Law  of 
Criminal  Procedure  shall  be  followed  in  criminal  cases  in  the  settle- 
ment of  disputed  questions.  Article  165  of  the  Law  of  Criminal  Pro- 
cedure is  hereby  revoked. 

LXXX.  Whenever,  in  cases  involving  capital  punishment  or 
imprisonment,  the  necessary  majority  of  votes  should  not  have  been 
cast,  although  a  majority  of  the  associate  justices  present  at  the  trial 
may  have  voted  for  said  punishments,  the  penalties  immediately  infe- 
rior in  degree  to  those  voted  for  shall  be  imposed.  This  fact  shall  be 
thus  stated  in  the  sentence. 

LXXXI.  Whenever  the  supreme  court  renders  judgment,  a  certified 
copy  of  the  same  shall  be  transmitted,  together  with  the  brief  and 
original  records  of  the  case,  to  the  lower  court  from  which  the  appeal 
for  annulment  proceeds. 

Whenever  judgment  for  payment  of  the  costs  of  an  appeal  is  ren- 
dered, said  costs  shall  first  be  fixed  and  approved  by  the  supreme 
court  itself  in  the  prescribed  form.  A  certified  copy  of  the  amount 
of  costs  and  of  their  approval  shall  be  transmitted  to  the  lower  court 
from  which  the  appeal  proceeds. 

LXXXII.  All  judgments  rendered  by  the  supreme  court  shall  be 
published  in  the  Official  Gazette  of  the  government,  and  collectively 
in  volumes,  the  editing  of  which  shall  be  under  the  care  of  the  secre- 
tary of  justice.  The  court  shall  have  authority  freely  to  suppress  in 
said  publication,  for  whatever  reasons  it  may  deem  proper,  the  names 
of  the  parties  and  places  mentioned  in  the  suit,  that  of  the  court  from 
which  the  judgment  in  question  proceeds,  and  any  circumstances  that 
may  lead  to  identification  of  the  said  parties,  places,  or  court. 

LXXXIII.  The  provisions  of  articles  800  to  803,  both  inclusive,  of 
the  Law  of  Criminal  Procedure  shall  continue  in  force.  The  references 
made  in  article  801  shall  be  considered  as  being  in  relation  to  the  pro- 
visions of  this  order;  the  words  "?/  determinar  sobre  la  inversion  del 
<l<'j>oxito"  in  article  803,  are  hereby  suppressed. 

LXXXIV.  Recourse  of    revision  may  be  had  in  civil  as  well  as 


460  LAW    OF    CIVIL    PROCEDURE. 

criminal  suits  in  the  cases  provided  for  in  articles  1794  and*  1795  of 
the  Law  of  Civil  Procedure,  and  article  954  of  the  Law  of  Criminal 
Procedure,  the  provisions  of  which  shall  continue  in  force. 

LXXXV.  Recourse  of  revision  in  civil  suits  may  be  established  by 
parties  to  the  suit  or  their  assigns;  in  a  criminal  suit  this  may  be  done 
by  the  defendant  himself,  his  consort,  his  relatives  in  direct  line  of 
descent,  his  brothers,  or  by  the  fiscal  whenever  he  may  have  cogni- 
zance of  any  case  in  which  such  action  is  proper. 

Such  prisoners  and  persons  related  to  them  as  are  mentioned  above 
may  request  that  recourse  of  revision  be  had,  and  to  that  end  may  pre- 
sent a  simple  memorial  to  the  secretary  of  justice.  After  examination 
of  the  case  the  secretary  may  direct  the  fiscal  to  establish  the  appeal. 

LXXXV1.  In  criminal  suits  revision  may  be  requested  at  any  time, 
even  after  the  sentence  has  been  executed. 

In  civil  suits,  in  cases  provided  for  in  article  1794  of  the  Law  of  Civil 
Procedure,  the  period  set  for  establishing  such  appeals  shall  be  three 
months,  counting  from  the  day  upon  which  new  evidence,  or  fraud, 
was  discovered,  or  from  the  date  of  acknowledgment  or  declaration  of 
deceit. 

Recourse  of  revision  in  civil  suits  shall  not  be  established  later  than 
five  years  after  the  date  of  the  publication  of  the  judgment  in  the  case. 
If  presented  after  said  period  it  shall  be  denied. 

LXXXVIL  Recourse  of  revision  shall  always  be  established  before 
the  supreme  court,  whatever  may  be  the  grade  of  the  judge  or  court 
before  which  the  final  judgment  was  rendered. 

LXXXVIII.  The  recourse  shall  be  petitioned  for  in  writing,  and 
the  petition  shall  set  forth  the  facts  and  legal  principles  upon  which 
the  appeal  is  based. 

LXXXIX.  The  appeal  being  established,  the  court  shall  require 
that  it  be  furnished  with  all  the  original  records  and  preliminary  facts 
connected  with  the  suit  or  cause  in  which  the  judgment  was  rendered 
and  the  revision  of  which  is  solicited,  and  it  shall  summon  all  the 
parties  thereto,  or  their  assigns,  to  appear,  in  writing,  within  forty 
days  to  maintain  their  rights.  Thenceforth  the  proceedings  shall  be 
in  accordance  with'  the  provisions  of  the  Law  of  Civil  Procedure. 

XC.  The  fiscal  shall  always  be  considered  as  party  in  all  appeals  for 
revision. 

XCI.  Petitions  for  revision  in  civil  suits  shall  not  interrupt  the  exe- 
cution of  the  final  judgments  rendered  in  the  case. 

In  view  of  the  circumstances,  however,  the  court  may,  at  the  appel- 
lant's request,  on  giving  his  bond,  and  upon  the  fiscal's  recommendation, 
direct  that  the  execution  of  the  sentence  be  suspended. 

The  court  shall  approve  the  bond  on  its  own  responsibility.  To  this 
end  it  shall  establish  the  kind  and  amount  of  said  bond,  which  shall 
cover  the  value  in  litigation,  together  with  the  costs  and  damages  con- 


LAW    OF    CIVIL    PEOCEDUEE.  461 

sequent  upon  the  nonexecution  of  the  judgment  in  case  the  appeal 
should  be  denied. 

XCII.  If  questions  arise  during  any  part  of  the  proceedings  in 
appeal  for  revision  in  a  civil  suit,  the  decision  of  which  may  come  within 
the  criminal  jurisdiction,  the  proceedings  before  the  court  shall  be  sus- 
pended until  final  judgment  be  rendered  in  the  criminal  case.  Under 
such  circumstances  the  period  of  five  years  fixed  by  Article  LXXXVI 
of  this  order  shall  be  considered  as  interrupted  from  the  time  of  initi- 
ating the  criminal  proceedings  until  their  settlement  by  final  sentence, 
and  shall  begin  again  to  count  from  the  date  of  such  sentence. 

XCIII.  In  the  first  case  of  article  954  of  the  Law  of  Criminal  Pro- 
cedure, the  supreme  court  shall  declare  the  contradictory  character  of 
the  sentences,  if  in  fact  it  exist,  and  shall  set  aside  both,  ordering  the 
court  having  cognizance  of  the  crime  to  institute  new  proceedings. 

In  the  second  case  of  the  same  article,  whenever  the  person  be  iden- 
tified for  whose  death  a  penalty  may  have  been  imposed,  the  supreme 
court  shall  annul  the  final  sentence. 

In  the  third  case  of  said  article,  the  court  considering  the  writ 
declaring  the  falsity  of  the  document  shall  annul  the  sentence  and 
direct  the  court  having  cognizance  of  the  crime  to  institute  new 
proceedings. 

XCIV.  Whenever  in  consequence  of  the  annulment  of  a  final  judg- 
ment the  person  condemned  may  have  suffered  punishment,  this  shall 
be  considered,  if  in  the  new  sentence  any  other  punishment  is  imposed, 
together  with  the  entire  time  he  served  under  the  first  sentence. 

XCV.  Should  the  prisoner  have  died,  his  widow,  his  relatives  in  the 
direct  line  of  descent,  either  legitimate  or  legitimized,  may  solicit  a 
revision  for  any  of  the  causes  enumerated  in  article  954  of  the  Law^of 
Criminal  Procedure,  in  order  to  rehabilitate  the  name  of  the  deceased 
and  to  secure  the  punishment  of  the  real  culprit. 

XCVI.  Should  the  supreme  court  find  grounds  for  the  revision  solic- 
ited in  a  civil  suit,  for  the  reason  that  the  judgment  may  have  been 
based  upon  witnesses  or  documents  declared  false,  or  that  it  was  unjustly 
rendered  in  the  other  cases,  under  article  1794  of  the  Law  of  Civil 
Procedure,  it  shall  so  declare,  and  rescind,  wholly  or  in  part,  the  final 
judgment  objected  to,  according  to  whether  the  grounds  of  the  appeal 
refer  to  the  whole  judgment  or  simply  to  any  one  of  its  parts. 

XCVII.  The  supreme  court,  having  rendered  judgment  in  a  civil 
suit,  which  through  the  admission  of  the  recourse  of  revision  rescinds, 
wholly  or  in  part,  the  final  one  objected  to,  shall  direct  that  a  certified 
copy  of  said  judgment  be  transmitted,  together  with  the  records  and 
other  data,  to  the  court  from  which  they  proceed,  in  order  that  the 
parties  may  exercise  their-rights  in  the  corresponding  suit. 

In  any  case,  the  declarations  in  the  recourse  of  revision  shall  serve 
its  a  basis  of  the  new  suit.  They  may  not  be  discussed. 


462  LAW    OF    CIVIL    PROCEDURE. 

XCVI1I.  The  rescission  of  the  final  judgment  in  a  civil  suit,  as  a 
result  of  the  recourse  of  revision,  shall,  when  admitted,  produce  all  its 
legal  effects,  except  the  acquired  rights,  which  must  be  respected  in 
accordance  with  the  provisions  of  article  84  of  the  Mortgage  Law. 

XCIX.  All  provisions  for  annulment  of  judgment,  referring  to  the 
appearance  of  the  parties  and  their  representatives  before  the  supreme 
court,  shall  apply  to  the  recourse  of  revision,  as  well  as  the  costs  to 
be  fixed  and  the  nonpayment  of  fees  in  the  clerk's  office. 

Whenever  the  recourse  of  revision  is  denied  the  appellant  shall  pay 
the  entire  costs  of  same.  In  case  of  its  admission  the  objecting  party 
shall  never  be  expressly  charged  with  the  costs.  This  charge  shall 
never  be  imposed  upon  the  fiscal. 

C.  There  shall  be  no  appeal  from  the  final  judgment  rendered  in 
recourse  of  revision. 

CI.  All  the  provisions  of  Titles  XXI  and  XXII  of  Book  II  of  the 
Law  of  Civil  Procedure  and  of  Book  V  of  the  Law  of  Criminal  Pro- 
cedure which  are  not  declared  in  force  by  the  present  order  are  hereby 
revoked. 

CIL  The  provisions  of  paragraph  18  of  Article  VII  of  the  order 
published  April  14,  1899,  by  the  military  governor  of  this  island,  shall 
be  understood  in  the  manner  specified  in  the  following  articles. 

CIII.  Against  all  judgments  of  the  civil  court  of  the  audiencia  of 
Havana,  the  only  one  which,  in  Cuba,  under  the  order  of  April  1, 1899, 
shall  have  cognizance  of  administrative  suits  (contendoso-adininistra- 
tivos),  appeals  for  annulment  of  judgment  may  be  established  before 
the  supreme  court,  provided  the  said  judgments  be  final  or  of  such  a 
character  as  to  put  an  end  to  said  administrative  proceedings,  by  pre- 
venting their  continuation. 

CIV.  Appeals  may  be  established  for  error  in  law  or  legal  doctrine 
and  for  defects  in  form  in  the  cases  mentioned  in  articles  1690  and 
1691  of  the  Law  of  Civil  Procedure.  All  the  provisions  of  the  fore- 
going articles  regulating  the  procedure  for  annulment  of  judgment  in 
civil  or  criminal  suits  are  applicable  to  administrative  suits,  as  a  con- 
sequence of  the  foregoing. 

CV.  Recourse  of  revision  may  also  be  had  against  final  judgments 
in  administrative  suits,  whether  rendered  by  the  civil  court  of  the 
audiencia  of  Havana  or  by  the  supreme  court,  in  any  of  the  cases 
provided  for  in  article  1794  of  the  Law  of  Civil  Procedure,  and  all 
the  provisions  contained  herein,  with  respect  to  revision  and  which 
may  be  applicable  to  civil  suits,  shall  also  apply  to  administrative  suits. 

CVI.  As  a  consequence  of  foregoing  provisions,  articles  64  to  82, 
both  inclusive,  of  the  Law  on  Administrative  Suits  (Ley  de  lo  Con- 
tencioso-administrativo)  of  September  13, 1888,  and  articles  449  to  500, 
both  inclusive,  of  the  regulations  for  the  execution  of  said  law  are 
hereby  revoked,  as  well  as  any  other  provision  of  either  that  ma}T  be 


LAW    OF    CIVIL    PROCEDURE.  463 

in  conflict  with  the  provisions  of  this  order.  Article  103  of  the  afore- 
said law  is  likewise  revoked,  and  consequently  the  fiscal  may  not 
raise  the  question  of  jurisdiction,  except  as  provided  for  in  article  46 
of  the  said  law. 

CVII.  All  the  dispositions  of  the  Mortgage  Law  and  its  regulations 
relative  to  the  participation  of  the  ** MUCWH  de  los  registros  de  la  pro- 
l>i<>dad  y  notariado"  in  administrative  appeals,  made  against  the 
approval  of  the  reg-istros,  shall  apply  to  the  president  of  the  supreme 
court,  to  whom,  by  express  provision  of  the  order  creating  said  court, 
belongs  the  final  decision  of  such  appeals. 

CVIII.  In  all  cases  of  decisions  susceptible  of  appeal  for  annulment 
of  judgment  which  may  have  been  prontmnced  by  the  audiencias  of 
Havana,  Pinar  del  Rio,  Matanzas,  and  Santa  Clara,  and  against  which 
appeal  may  have  been  made  for  annulment  of  judgment  for  defect  of 
form,  or  where  the  intention  of  appealing  for  error  of  law  has  been 
announced,  without  the  parties  having  been  notified  prior  to  the  llth 
day  of  April,  1899,  the  date  of  the  exchange  of  the  ratifications  of  the 
Treaty  of  Paris,  the  parties  shall  be  notified,  and  from  this  notification 
they  may  make  said  appeals  in  the  terms,  form,  and  conditions  provided 
for  in  this  order. 

CIX.  In  cases  wherein  the  audiencias  of  Santiago  de  Cuba  and 
Puerto  Principe,  which  after  the  Spanish  evacuation  were  constituted 
as  supreme  courts  in  said  provinces,  may  have  given  decisions  which,  in 
conformity  with  the  Laws  of  Procedure,  were  susceptible  of  appeal  for 
annulment  of  judgment,  and  against  which  there  may  have  been  made 
appeal  for  defect  of  form,  or  where  intention  of  appealing  for  error 
in  law  has  been  announced,  the  following  rules  shall  be  applied: 

1.  The  provisions  of  the  preceding  article  shall  apply  if  the  judg- 
ments have  not  already  been  executed. 

2.  If  such  judgment  shall  have  been  executed,  there  shall  be  no  other 
recourse  than  that  of  revision.     Sentences  which  may  have  been  given 
in  criminal  cases  shall  be  susceptible  of  revision  in  the  terms  expressed 
by  the  preceding  article,  although  the  prisoners  may  be  undergoing 
punishment,  so  long  as  the  punishment  ordered  is  not  completely 

tuted. 
ADNA  R.  CHAFFEE, 
Brigadier-  General,  Chief  of  Staff. 
_J 


No.  96. 


HEADQUARTERS  DIVISION  OF  CUBA, 

Habana,  June  29,  1899. 

'he  military  governor  of  Cuba  directs  the  publication  of  the  fol- 
lowing order: 

I.   Hereafter,   in  administrative  proceedings   (contencioso  adminis- 
1r«tivo],  no  other  recourse  shall  be  granted  against  rulings,  decrees,  or 


464  LAW    OF    CIVIL    PROCEDURE. 

judgments  pronounced  by  the  sola  de  lo  civil  of  the  audiencia  of 
Havana  and  of  the  supreme  court,  than  that  specified  in  the  following 
articles : 

II.  Against  rulings  of  mere  routine,  no  recourse  whatever  shall  be 
had  except  that  of  responsibility. 

III.  Against  judgments  or  rulings  deciding  incidents  of  procedings, 
and,  in  general,  against  decrees,  the  recourse  of  "suplica"  may  be  had 
under  the  conditions  prescribed  in  article  401  of  the  Law  of  Civil  Pro- 
cedure. 

IV.  Against  final  judgments,  or  against  decrees  which  put  an  end 
to  administrative  proceedings,  making  their  continuation  impossible, 
pronounced  by  the  audiencia  of  Havana,  appeal  for  annulment  of  judg- 
ment may  be  had  in  the  cases  specified  in  the  order  (No.  92)  estab: 
lishing  the  manner  of  procedure  in  such  appeals. 

V.  Against  the  provisions  specified  in  the  preceding  article,  when 
pronounced  by  the  supreme  court,   no  other  recourse  can   be  had 
except  that  of  revision. 

VI.  All  decrees,  orders,  or  laws,  or  parts  thereof,  in  conflict  with 
the  provisions  of  the  foregoing  order,  are  hereby  revoked. 

ADNA  R.  CHAFFEE, 
Brigadier-  General,  Chief  of  Staff. 


No.  114. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  July  21,  1899. 

The  military  governor  of  Cuba  directs  that  the  order  (No.  92)  pre- 
scribing methods  of  procedure  before  the  supreme  court  shall  be  con- 
sidered as  having  gone  into  effect  on  the  date  of  its  publication  in  the 
official  gazette. 

ADNA  R.  CHAFFEE, 
Brigadier-  General,  Chief  of  Staff. 


No.  135. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  August  11,  1899. 

The  military  governor  of  Cuba  directs  the  publication  of  the  follow 
ing  order: 

I.  From  the  date  of  the  publication  of  this  order,  in  every  case  in 
Avhich  the  laws  of  civil  and  criminal  procedure  in  force  prescribe  stated 
periods  of  time  for  appearance  before  the  supreme  court,  the  said 
periods  are  hereby  reduced  to  ten  (10)  days,  whenever  the  audiencias 


LAW    QF    CIVIL    PKOCEDUEE.  465 

of  Pinar  del  Rio,  Havana,  Matanzas,  and  Santa  Clara,  or  other  courts 
of  law  within  said  territories,  have  cognizance  thereof,  and  to  twenty 
(20)  days,  when  the  audiencias  or  other  courts  of  law  of  Puerto  Principe 
and  Santiago  de  Cuba  are  concerned. 

II.  In  every  case,  when  said  laws  may  require  that  certified  copies 
of  proceedings  be  sent  to  the  supreme  court,  the  original  records  will 
be  forwarded. 

ADNA  R.  CHAFFEE, 
Brl(jadier-  General,  Chief  of  Staff. 


No.  157. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  September  5,  1899. 

The  military  governor  of  Cuba  directs  the  publication  of  the  follow- 
ing order: 

In  all  cases  in  which  the  law  either  of  civil  or  criminal  procedure 
shall  reserve  the  decision  in  any  case  to  the  "court  in  full"  (tribunal 
enpleno),  it  shall  be  understood  that,  from  the  date  of  this  order,  the 
decision  of  such  case  shall  be  made  by  the  section  of  the  court  having 
cognizance  thereof. 

If,  either  because  the  case  pending  for  decision  is  that  of  objections 
taken  to  the  sitting  of  any  of  the  magistrates  or  from  any  other  cause, 
not  a  sufficient  number  of  magistrates  should  be  left  in  the  court  to 
constitute  a  legal  quorum  to  decide  the  case  in  question,  then,  if  the 
case  be  pending  before  the  audiencia  of  Havana,  magistrates  of  the 
other  sections  shall  be  called  in,  and  in  cases  pending  before  the  other 
Ludiencias  or  before  the  supreme  court,  the  substitute  justices  shall  be 

lied  in  when  necessary  to  form  a  legal  quorum. 

ADNA  R.  CHAFFEE, 
Brigadier-  General,  Chief  of  Staff. 


No.  176. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  September  21,  1899. 

The  military  governor  of  Cuba  directs  the  publication  of  the  follow- 
ng  order: 

Hereafter  and  for  all  legal  purposes  the  following  only  shall  be  con- 
idered  as  holidays:  Sundays,  the  first  day  of  the  year  (New  Year's 
y),  Holy  Thursday,   Good   Friday,  and  the  twenty -fifth  day  of 
cember  (Christmas).     From  the  last-mentioned  day  (Dec.  25th)  to 
the  second  day  of  January,  tribunals  and  courts  shall  suspend  business 
2901 30 


466  LAW    OF    CIVIL    PROCEDURE. 

regarding  proceedings  which  do  not  refer  to  misdemeanor  suits,  sum- 
mary instructions,  cases  relating  to  the  release  of  accused  persons,  and 
to  civil  register. 

ADNA  R.  CHAFFEE, 

Brigadier-  General,  Chief  of  Staff. 


No.  42. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  January  26,  1900. 

The  military  governor  of  Cuba,  upon  the  recommendation  of  the 
secretary  of  justice,  directs  the  publication  of  the  following  order: 
Article  86  of  the  Civil  Code  is  hereby  amended  to  read  as  follows: 

I.  In  proceedings  instituted  for  the  purpose  of  celebrating  mar- 
riages, it  is  permissible,  whenever  it  may  be  desired,  to  substitute  the 
church  certificates  of  birth  of  the  contracting  parties  and  the  certifi- 
cates of  the  death  of  their  parents  and  other  ancestors  by  sworn  evi- 
dence.    This  evidence  may  be  given  before  the  same  municipal  judge 
who  is  to  have  cognizance  of  the  proceedings,  or  any  other  judge,  and 
shall  consist  of  the  sworn  statements  of  two  (2)  witnesses  as  to  the  age, 
place  of  birth  or  death,  and  nativity  of  the  person  to  whom  it  refers. 

Whenever  the  birth  or  death  may  have  occurred  outside  of  the  island 
of  Cuba  evidence  may  be  also  given  thereof  in  the  manner  prescribed 
above. 

Certificates  of  the  civil  register  may  also  be  substituted  in  the  cases 
and  manner  above  prescribed,  but  only  when  proof  is  given  that  the 
books  of  registry  in  which  the  inscriptions  were  or  should  have  been 
made  have  either  been  lost  or  destroyed  or  have  never  existed,  by 
others  which  shall  be  furnished  by  the  judge  of  primera  instancia  and 
which  must  be  asked  for  by  the  municipal  judge  at  the  request  of  the 
interested  party  or  parties. 

II.  In  the  case  of  foreigners  who  have  resided  less  than  two  (2)  years 
in  the  island  of  Cuba,  no  evidence  of  the  publication  of  the  marriage 
they  intend  to  contract  in  the  territory  where  they  have  had  their 
domicile  or  residence  during  the  last  two  (2)  years  will  be  required : 
Provided^  a  certificate  is  furnished  by  competent  authority  or  other 
evidence  is  submitted  satisfactory  to  the  municipal  judge  who  is  to 
authorize  the  marriage,  that  the  requirement  for  such  publication  does 
not  exist  in  that  territory. 

III.  Municipal  judges  will  charge  a  fee  of  one  (1)  dollar,  United 
States  currency,  for  their  services  in  such  proceedings,  and  no  more, 
no  matter  what  may  be  the  extent  thereof  nor  the  procedure  that  they 
may  take,  or  whether  it  refers  to  one  or  more  persons. 

ADNA  R.  CHAFFEE, 
Brigadier-  General,  Chief  of  Staff. 


LAW    OF    CIVIL    PROCEDURE.  467 

No.  141. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  April  7,  1900. 

The  military  governor  of  Cuba,  upon  the  recommendation  of  the 
secretary  of  justice,  directs  the  publication  of  the  following  order: 

I.  Article  1399  of  the  Law  of  Civil  Procedure  is  hereby  amended  by 
adding  thereto  the  following: 

The  preventive  embargo  must  also  be  decreed  whenever  a  merchant 
solicits  it,  when  the  proceedings  are  directed  against  any  one  that  is  or 
may  have  been  a  merchant  or  manufacturer  and  the  debt  is  the  result 
of  mercantile  transactions  between  them  and  the  payment  of  an 
amount  in  cash  is  claimed. 

In  this  case  it  will  not  be  necessary  to  produce  any  documentary 
evidence.  It  will  be  sufficient  for  the  one  soliciting  the  embargo  to 
swear  that  the  requisites  of  the  account  as  stated  in  the  preceding 
paragraph  are  true,  and  that  the  amount  claimed  is  due  him  and  has 
not  been  paid. 

The  embargo  will  be  immediately  decreed  after  the  necessary  bond 
is  furnished,  which  bond  will  not  exceed  the  amount  claimed  as  due, 
with  one-third  of  the  amount  added. 

These  embargoes  will  only  be  decreed  in  case  of  indebtedness  to  the 
claimant  personally,  and  never  in  the  case  of  credits  transferred  to  a 
third  person. 

The  articles  embargoes  will  be  left  on  deposit  in  the  possession  of  the 
debtor,  and  any  violation  of  this  deposit  will  constitute  the  offense  of 
fraud  under  paragraph  5  of  article  559  of  the  penal  code. 

II.  Article  1400  of  the  Law  of  Civil  Procedure  is  amended  to  read  as 
follows: 

Article  1400.  In  the  cases  enumerated  in  paragraphs  2,  3,  and  4  of 
preceding  article,  if  the  person  soliciting  the  embargo  should  have 
known  responsibility,  the  judge  will  require  from  him  sufficient 
>nd  to  pay  such  damages  and  costs  as  may  accrue. 
The  bond  to  which  this  article  and  the  previous  one  refer  shall  be 
ich  as  the  la  wauthorizes.     Should  the  judge  accept  a  personal  bond, 
ie  will  be  held  personally  responsible  for  the  same. 

ADNA  R.  CHAFFEE, 
Brigadier- General,  U.  8.   Vols.,  Chief  of  Staff. 


No.  166. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  April  23,  1900. 

The  military  governor  of  Cuba,  upon  the  recommendation  of  the 
secretary  of  justice,  directs  the  publication  of  the  following  order: 


468  LAW    OF    CIVIL    PEOCEDUEE. 

I.  The  intervention  of  solicitors  in  the  courts  and  tribunals  of  this 
island  shall  cease  to  be  obligatory  from  the  date  of  the  publication  of 
this  order.     The  interested  party  or  parties  may  appear  in  person  or 
through  representatives;  the  latter  may  be  a  solicitor,  the  lawyer  in 
charge  of  the  case,  or  any  other  person  who  enjoys  civil  rights  and  who 
can  read  and  write  the  Spanish  language. 

II.  In  civil  suits  the  representative  must  show  a  proper  power  of 
attorney,  in  accordance  with  the  provisions  of  article  3d  of  the  exist- 
ing Law  of  Civil  Procedure.    In  criminal  actions,  whenever  it  concerns 
the  accused,  it  will  suffice  for  him  to  appoint  or  name  said  representa- 
tive in  the  record  of  the  proceedings.    In  the  latter  case,  in  default  of 
expressed  acceptance,  the  appearance  for  the  accused  of  the  person 
mentioned  will  be  considered  as  his  acceptance. 

III.  Said  representatives  shall  be  subject  to  the  provisions  of  arti- 
cles 5,  6,  9,  194,  and  198  of  the  Law  of  Civil  Procedure,  excepting 
paragraph  5th  of  the  first  of  said  articles.     For  collection  of  payment 
for  their  work  and  reimbursement  of  the  expenses  they  may  incur,  all 
representatives  of  the  parties  shall  enjoy  the  privileged  proceedings 
granted  to  solicitors  by  article  8  of  the  aforementioned  law  and  article 
242  of  the  Law  of  Criminal  Procedure. 

IV.  The  parties  or  their  representatives  shall  be  notified  of  all  the 
rulings  of  the  court,  decrees,  and  sentences,  in  accordance  with  the 
provisions  of  articles  260,  261, 262, 263,  and  the  first  paragraph  of  art. 
264  of  the  Law  of  Civil  Procedure;  but  the  clerk  of  the  court  (actua- 
rio),  whose  duty  it  will  be  to  furnish  such  copies,  shall  limit  the  same 
to  the  considerandos  and  decisions  whenever  decrees  and  sentences  are 
alone  concerned. 

V.  In  accordance  with  the  preceding  article  the  parties  or  their  rep- 
resentatives must  proceed  to  the  court  or  tribunal  every  day  (except 
Sundays  and  holidays)  to  be  notified  of  the  decisions  rendered. 

VI.  If  the  party  or  his  representative,  whenever  the  latter  is  not  a 
solicitor,  should  fail  to  appear  at  the  court  on  the  day  when  the  deci- 
sions are  given  out,  the  clerk  of  the  court  shall,  on  the  day  following, 
post  a  copy  of  said  decisions  upon  the  bulletin  of  the  court,  adding 
thereto  the  date  of  the  posting  and  a  statement  that  said  notification  is 
made  to  the  parties  or  their  representatives  in  this  manner  because  of 
their  failure  to  appear. 

VII.  The  hereinbefore-mentioned  copies  shall  remain  posted  for  the 
whole  period  within  which  any  legal  appeal  may  be  filed  against  the 
decision.    After  said  period  the  copy  shall  be  added  to  the  proceedings 
of  the  case,  with  the  clerk  of  the  court's  note  thereon  stating  the  day 
and  hour  it  was  removed  from  the  bulletin. 

VIII.  After  one  or  more  notifications,  summons,  etc.,  as  indicated 
in  Article  VI  of  this  order,  the  clerk  of  the  court  shall  deliver  to  the 
judge  or  tribunal,  upon  the  very  day  of  drawing  them  up,  a  summary 


LAW    OF    CIVIL    PEOCEDURE.  469 

report  of  the  above,  stating  the  matters  upon  which  decisions  have 
been  rendered,  the  character  of  the  latter,  the  contents  of  said  deci- 
sions, and  the  names  of  the  parties  or  the  representatives  who  have  been 
notified  in  the  manner  prescribed.  The  judge  or  court  shall  verify  the 
correctness  of  the  clerk  of  the  court's  report,  and  certify  to  same  on 
the  document,  which  will  remain  in  his  possession. 

IX.  Whenever  any  party  or  his  representative  may  have  appeared 
at  the  court  and  not  received  the  above  notifications  he  shall  have  the 
right  to  obtain,  but  only  in  such  cases,  from  the  clerk  of  the  court,  a 
brief  certificate  stating  date  and  hour  of  said  appearance  at  said  court 
or  tribunal  and  that  he  was  informed  of  the  nonexistence  of  any 
decisions  whereof  he  had  to  be  notified. 

X.  Any  doubts  connected  with  the  act  of  the  notification  in  the 
manner  provided  for  in  Article  VI  shall  be  decided  without  further 
appeal,  and  excepting  however  the  provisions  of  the  following  para- 
graph, together  with  the  results  that  may  arise  from  the  report  men- 
tioned in  Article  VIII.     Any  doubts  relating  to  the  appearance  of  the 
party  or  his  representative  upon  a  certain  day  at  the  court  or  tribunal 
for  the  purpose  of  being  notified  shall  be  decided  without  further 
appeal,  by  means  of  the  certificate  mentioned  in  Article  IX. 

XI.  In  regard  to  notifications  to  persons  other  than  parties  to  the 
suit,  or  to  whom  by  law  they  must  be  made  personally,  the  provisions 
of  articles  266,  267,  268,  and  269  of  the  Law  of  Civil  Procedure  shall 
be  observed. 

XII.  The  fees  of  solicitors  shall  always  be  paid  by  the  parties  employ- 
ing them  in  the  suit,  and  shall  not  be  imposed  upon  parties  condemned 
to  pay  the  costs. 

XIII.  The  amount  of  the  costs  shall  be  fixed  by  the  clerk  of  the 
court,  free  of  charge. 

XIV.  The  record  of  the  proceedings,  whenever  delivery  of  same  is 
to  be  made,  shall  be  handed  to  the  solicitor  in  case  of  his  taking  part 
in  the  suit,  otherwise  to  the  lawyer,  in  return  for  a  receipt  which  the 
clerk  of  the  court  shall  draw  up,  stating  therein  the  number  of  folios 
contained  in  said  record. 

XV.  Whenever  any  one  of  the  parties  may  have  omitted  the  copy 
of  any  petition  or  document,  without  detriment  to  what  is  provided 
for  in  art.  517  of  the  Law  of  Civil  Procedure,  the  parties  who  were 
to  receive  said  copy  may  waive  their  right  thereto  by  making  written 
or  verbal  statement  to  that  effect  to  the  court. 

XVI.  From  the  date  of  the  enforcement  of  this  order,  no  further 
solicitors  de  oficio  shall  be  appointed;  and  whenever  the  accused  may 
have  failed  to  appoint  counsel  and  a  lawyer  for  paupers  (dbogado  de 
pobres)  be  appointed  for  his  defense,  the  former  shall  be  instructed 
with  the  proceedings  of  the  case. 

XVII.  From  the  date  of  this  order  the  offices  of  appraiser  of  costs 


470  LAW    OF    CIVIL    PROCEDURE. 

(tasadores  de  costas)  and  of  distributor  of  civil  affairs  (repartidor  de 
negocios  cwiles)  of  the  audiencia  of  Havana  shall  be  abolished. 

ADNA  R.  CHAFFEE, 
Brigadier- General,  U.  S.   Vols.,  Chief  of  Staff. 


No.  192. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  May  9,  1900. 

The  military  governor  of  Cuba,  upon  the  recommendation  of  the 
secretary  of  justice,  directs  the  publication  of  the  following  order: 

Article  LXXI  of  Order  No.  92,  Headquarters  Division  of  Cuba, 
dated  June  26,  1899,  relating  to  appeals  for  annulment  of  judgment,  is 
hereby  modified  to  read  as  follows: 

LXXI.  In  cases  wherein  the  court  may  not  have  passed  the  sentence 
of  death  demanded  by  the  accusation,  the  proceedings  for  appeal  shall 
be  as  provided  for  in  the  preceding  articles. 

Upon  admitting  the  appeal,  the  court  passing  sentence  shall  order 
that  the  original  proceedings  be  forwarded  to  the  supreme  court, 
instead  of  directing  that  a  certified  copy  be  delivered  to  the  appellant. 
After  said  records  have  been  received  by  the  supreme  court,  and  the 
appellant  has  appeared,  the  prisoner  shall  be  required  to  appoint  a 
lawyer  to  represent  and  defend  him,  which  he  must  do  within  what 
remains  of  the  time  set  for  his  appearance,  and  if  this  be  not  possible, 
within  ten  days,  when  an  appeal  is  made  against  judgments  of  the 
audiencias  of  Havana,  Matanzas,  Santa  Clara,  and  Pinar  del  Rio,  and 
within  twenty  days  if  against  decisions  of  the  audiencias  of  Puerto 
Principe  and  Santiago  de  Cuba,  counting  from  the  day  following  his 
being  required  to  appoint  counsel.  If  the  prisoner  appoints  an  attor- 
ney, within  the  third  day  after  such  appointment  is  recorded  in  the 
supreme  court,  the  person  selected  shall  be  notified  thereof,  in  order 
that  on  the  day  following  the  notification  he  may  signify  his  accept- 
ance or  not,  and  his  appearance  in  the  name  of  the  prisoner  shall  be 
considered  as  acceptance.  Should  the  prisoner  not  designate  counsel, 
or  the  acceptance  of  the  person  appointed  be  not  recorded,  the  court 
shall  designate  one  de  officio  (of  its  own  accord)  to  represent  the  pris- 
oner and  take  charge  of  his  defense,  who  shall  not  be  excused  there- 
from, except  upon  grounds  of  incompatibility.  The  prisoner  having 
been  provided  with  counsel  for  his  defense,  the  subsequent  proceedings 
of  the  appeal  will  be  in  conformity  with  all  that  may  be  applicable  to 
the  case  in  the  provisions  of  Article  XXVII  and  following  ones.  The 
parties  may  state  within  the  period  specified  in  Article  XXVIII,  in 
addition  to  the  petitions  expressed  therein,  any  grounds  of  appeal  for 
annulment  for  defect  in  form. 


u 

: 


LAW    OF    CIVIL    PROCEDURE.  471 

Before  rendering  decision  concerning  the  appeal  established  the 
court  shall  examine  the  defects  in  form  alleged  by  the  parties  and 
shall  not  render  decision  upon  said  appeal,  except  it  find  that  there  are 
no  such  defects  in  form  nor  any  others  not  alleged  by  the  parties  that 
justify  annulment. 

If  the  sentence  be  annulled  and  the  new  sentence  impose  the  death 
penalty,  before  communicating  this  to  the  lower  court  the  provisions 
of  Article  LXXII,  hereby  declared  applicable  to  this  case,  shall  be 
complied  with. 

TRANSITORY   PROVISIONS. 

Retroactive  effect  is  hereby  given  to  the  provisions  of  this  order  in 
the  appeals  pending  at  the  date  of  its  publication.  They  will  return 
to  the  point  of  the  proceedings  from  where  the  prisoner  may  avail 
himself  of  the  provisions  which  are  here  established  in  his  favor. 

J.  B.  HlCKEY, 

Assistant  Adjutant-  General. 


No.  242. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  June  18,  1900. 

The  military  governor  of  Cuba,  upon  the  recommendation  of  the 
secretary  of  justice,  directs  the  publication  of  the  following  order: 

I.  The  second  and  third  paragraphs  of  article  194  of  the  Law  of 
Civil  Procedure  shall  henceforth  read  as  follows:  "In  the  absence  of 
the  objecting  party  only  the  lawyer  and  the  solicitor  or  the  representa- 
tive of  said  party  shall  sign  the  application,  provided  that  either  of  the 
two  last-named  persons  be  expressly  authorized  to  demand  a  change 
of  venue,  and  said  solicitor  or  representative  shall  ratify  under  oath 
the  application  made,  without  which  requisite  no  action  shall  be  taken 
thereon. 

"In  every  case  there  shall  be  stated  in  the  application,  in  a  specific 
and  clear  manner,  the  grounds  on  which  the  objection  is  made,  alleging 
that  the  latter  are  true." 

II.  To  article  196  there  shall  be  added  ^the  following  paragraph: 
""Every  objecting  party,  should  he  not  be  declared  insolvent,  shall 
accompany  with  his  application  for  a  change  of  venue  the  proper 
voucher  proving  that  he  has  deposited  at  the  place  destined  for  the 
purpose  a  sum  equal  to  one-half  of  the  amount  that  he  would  be 
obliged  to  pay  as  a  fine,  in  case  his  application  be  refused.     Without 

his  requirement  no  action  shall  be  taken  in  relation  to  said  applica- 
tion, although  it  may  contain  ;i  specific  promise  that  said  deposit  will 
be  made  later  on." 


472  LAW    OF    CIVIL    PROCEDURE. 

III.  The  following  words  shall  be  added  to  article  197:  "In  all  these 
cases  the  return  of  the  deposit  shall  be  ordered." 

IV.  Article  212  shall  henceforth  read  as  follows:  "In  addition  to 
being  condemned  to  the  payment  of  the  costs  specified  in  the  preced- 
ing article,  a  fine  of  $200  shall  be  imposed  on  the  objecting  party,  when- 
ever his  application  is  against  a  judge  of  primera  instan^ia^  and  of 
$400  whenever  it  is  against  a  president  or  an  associate  justice  of  an 
audiencia  or  of  the  supreme  court." 

V.  Article  213  shall  henceforth  read  as  follows:   "As  soon  as  a 
sentence  may  become  final,  the  deposit  made  on  establishing  the  appli- 
cation for  a  change  of  venue  shall  cease  to  be  a  deposit  and  become 
the  property  of  the  State,  as  constituting  one-half  of  the  amount  of 
the  fine  imposed.     When  the  remaining  half  of  the  fine  mentioned  in  the 
preceding  article  shall  not  have  been  paid,  the  person  fined  shall  undergo 
imprisonment  in  lieu  thereof,  at  the  rate  of  one  day  for  each  three 
dollars  of  the  fine  not  paid,  in  which  respect  and  for  this  sole  pur- 
pose paragraph  first  of  article  49  of  the  penal  code  in  force  is  hereby 
amended,  but  the  imprisonment  shall  under  no  circumstances  be  for  a 
longer  period  than  six  months." 

Within  the  first  eight  days  of  each  month  the  judges  of  primera 
instancia  shall  forward  to  the  presidents  of  the  respective  audiencias, 
and  the  latter,  shortly  thereafter,  shall  forward  to  the  department  of 
justice  a  detailed  statement  of  the  cases  wherein  applications  for  change 
of  venue  have  been  refused  and  fines  imposed,  and  they  shall  state 
therein  the  amounts  of  the  latter  and  whether  the  same  have  been  paid, 
or  if  in  default  of  said  payment,  whether  the  persons  fined  have  under- 
gone the  prescribed  imprisonment  in  lieu  thereof;  the  functionary 
objected  to  being  responsible  for  the  payment  of  said  fines,  if  through 
his  fault  or  neglect  they  have  not  been  paid.  In  the  same  manner  the 
presidents  of  the  supreme  court  and  of  the  audiencias  shall  forward, 
within  the  period  hereinbefore  stated,  to  the  department  of  justice  a 
report  of  the  applications  for  change  of  venue,  prepared  in  the  man- 
ner expressed,  on  which  action  has  been  taken  by  their  respective 
courts;  said  presidents  also  incurring  the  above-mentioned  responsi- 
bility whenever  there  may  be  reasons  therefor. " 

VI.  The  following  words  shall  be  added  to  article  215:  "The  change 
of  venue  having  been  finally  granted,  the  return  of  the  deposit  shall 
be  ordered." 

VII.  In  articles  216  and  217  the  words  minister io  de  ultramar  and 
ministerio  shall  be  replaced  by  the  following  ones:  Secretaries  dejustida 
and  secretaries. 

VIII.  To  article  218  shall  be  added  the  paragraph  that  has  been 
incorporated  in  article  196. 

IX.  To  the  first  paragraph  of  article  219  the  following  phrase  shall 
be  added:  "In  this  case  the  deposit  shall  be  ordered  to  be  returned." 


LAW    OF    CIVIL    PROCEDURE.  473 

X.  To  paragraph  first  of  article  223  the  following  words  shall  be 
added:  "and  as  soon  as  it  may  be  final,  the  return  of  the  deposit  made 
shall  be  ordered.-' 

XL  Article  228  shall  henceforth  read  as  follows:  "Whenever  a 
change  of  venue  has  been  denied,  the  applicant  therefor  shall  be  con- 
demned to  the  payment  of  the  costs  of  the  proceedings  and  shall  also 
be  fined  in  the  sum  of  $100.00,  concerning  which  the  provisions  of 
article  213  are  applicable;  it  being  understood  that  the  monthly  state- 
ments shall  be  sent  by  the  municipal  judges  to  the  judges  of  primera 
instancia  and  by  the  latter  to  the  presidents  of  the  respective  audien- 
cias,  for  transmission  to  the  department  of  justice." 

XII.  To  paragraph  first  of  article  231  shall  be  added  the  words: 
" and  196,  added." 

XIII.  Article  234  shall  be  amended  to  read  as  follows:  "The  pro- 
visions of  articles  194  ct  seq.  of  section  2nd  of  this  title,  together  with 
the  changes  established,  shall  extend  to  applications  for  change  of 
venue  containing  objections  to  clerks  and  deput}'  clerks  of  the  supreme 
court  and  the  audicncias,  and  to  clerks  of  the  court  and  recorders  of 
judicial  proceedings  of  the  courts  of  primera  instancia,  but  with  the 
amendments  established  in  the  following  articles." 

XIV.  To  paragraph  first  of  article  236  will  be  added  the  following 
words:  uln  this  case  the  return  of  the  deposit  shall  be  ordered." 

XV.  To  paragraph  second  of  article  245  shall  be  added  the  follow- 
ing phrase:  "And  in  a  like  manner  a  fine  of  fifty  dollars  shall  be 
imposed  upon  the  applicant,  and  the  provisions  of  article  213  shall  be 
applicable  to  said  fine." 

J.  B.  HlCKEY, 

Assistant  Adjutant-  General. 


N°.  307. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  August  8,  1900. 

The  military  governor  of  Cuba  directs  the  publication  of  the  fol- 
lowing order: 

I.  Hereafter  marriages  may  be  civil  or  religious,  at  the  option  of 
the  contracting  parties. 

II.  Marriage,  so  far  as  its  validity  in  law  is  concerned,  continues  to 
be  a  civil  contract,  to  which  the  consent  of  the  parties,  capable  in  law 
of  making  the  contract,  is  essential. 

III.  Religious  marriages,  solemnized  as  herein  provided,  shall  have 
the  same  force  and  effect  as  civil  marriages. 

IV.  A  duly  ordained  clergyman  or  minister  of  any  religion   may 
perform  th<>  marriage  ceremony,  provided  that  the  contracting  parties 


474  LAW    OF    CIVIL    PROCEDURE. 

may  legally  contract  marriage,  and  provided  that  they  solemnly  declare, 
in  the  presence  of  the  clergyman  or  minister  and  of  the  attending  wit- 
nesses, that  they  take  each  other  as  husband  and  wife. 

V.  Two  witnesses  of  age  must  be  present  at  the  ceremony,  and  must, 
together  with  the  officiating  clergyman  or  minister,  sign  the  certificates 
herein  provided  for. 

VI.  Before  solemnizing  a  marriage  the  clergyman  or  minister  must, 
unless  there  has  been  a  previous  civil  marriage,  be  furnished  with  the 
evidence  as  to  the  age  of  the  contracting  parties,  required  by  article 
86  of  the  Civil  Code,  as  amended  by  Order  N°.  42  of  January  26th, 
1900,  a  certificate  signed  by  the  contracting  parties  that  they  are  free 
to  contract  marriage,  having  no  living  husband  or  wife,  and  the  paren- 
tal permission,  or  the  dispensation,  when  necessary,  under  the  provis- 
ions of  the  Civil  Code  now  in  force. 

VII.  The  clergyman  or  minister  shall  at  the  time  of  performing  the 
ceremony,  if  there  has  been  no  previous  civil  marriage,  make  a  certifi- 
cate showing: 

1.  The  names,  surnames,  age,  color,  occupation,  domicile,  or  residence 
of  the  contracting  parties. 

2.  The  names,  surnames,  occupation,  domicile,  or  residence  of  the 
parents  of  the  contracting  parties,  or  such  part  of  this  information  as 
can  be  ascertained. 

3.  The  date  and  place  of  the  performance  of  the  ceremony  of  mar- 
riage and  the  statement  that  such  marriage  was  performed,  in  the 
presence  of  the  subscribing  witnesses,  by  the  subscribing  clergyman 
or  minister,  who  shall  add  the  name  of  his  church  or  parish. 

VIII.  The  certificate  prescribed  in  the  foregoing  paragraph  shall  be 
filed  by  the  officiating  clergyman  or  minister  in  the  office  of  the  civil 
register  of  the  municipality  where  the  ceremony   was  performed, 
together  with  the  evidence  and  certificates  required  by  Article  VI  of 
this  order,  within  20  days  from  the  date  of  the  marriage,  and  a  proper 
record  shall  thereupon  be  made  on  the  civil  register,  and  a  memoran- 
dum shall  be  given  the  clergyman  or  minister  showing  the  date  of 
such  filing. 

IX.  Any  person  other  than  a  duly  ordained  clergyman  or  minister, 
or  the  proper  civil  authority,  who  shall  perform  or  attempt  to  perform 
the  ceremony  of  marriage,  shall  be  deemed  guilty  of  a  delito  and  pun- 
ished by  imprisonment  for  not  less  than  one  nor  more  than  five  years. 

X.  Any  clergyman  or  minister  who,  having  celebrated  a  religious 
marriage  as  herein  provided,  where  there  has  been  no  previous  civil 
marriage,  fails  to  file  the  certificates,  and  proofs  as  provided  for  by 
Paragraphs  VII  and  VIII  of  this  order,  shall  be  tried,  and,  if  found 
guilty,  fined  $100.00,  or  imprisoned  from  30  to  90  days  by  the  proper 
judge  of  his  domicile. 

XI.  Any  custodian  of  a  civil  register  who  refuses  to  receive  and 


LAW    OF    CIVIL    PROCEDURE.  475 

and  record  the  certificates  and  evidences  as  herein  provided  for,  or  who 
refuses  in  a  proper  case  to  give  memorandum  mentioned  in  the  fore 
going  paragraph,  must  state  his  reasons  in  writing  for  such  refusal, 
and  may,  at  the  petition  of  any  party  interested,  be  cited  before  the 
judge  of  instruction  of  the  district,  who  must  immediately  order,  in  a 
proper  case,  that  the  record  be  made  and  the  memorandum  given,  and 
the  custodian  of  the  civil  register  will  be  condemned  to  pay  the  costs 
of  the  application. 

XII.  Nothing  in  this  order  shall  affect  or  modify  the  provisions  of 
codes,  laws,  decrees,  or  orders  concerning  the  method  of  performing 
civil  marriage.  All  provisions  of  codes,  laws,  decrees,  or  orders  in 
conflict  with  this  order  are  hereby  repealed  and  revoked. 

J.    B.    HlCKEY, 

Assistant  Adjutant-  General. 

No.  427. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  October  15, 1900. 

The  military  governor  of  Cuba,  upon  the  recommendation  of  the 
secretary  of  justice,  directs  the  publication  of  the  following  order 
relating  to  the  writ  of  habeas  corpus: 

WHO   MAY   PROSECUTE   WRIT — WRIT   MAY   ISSUE   ON   ANY  DAY — PARTIES. 

I.  A  person   imprisoned  or   restrained  of  his  liberty  within  the 
island  of  Cuba  for  any  cause  or  upon  any  pretense  is  entitled,  except 
where  he  has  been  committed  or  is  detained  by  virtue  of  the  judgment 
of  a  competent  judge  or  tribunal,  to  a  writ  of  habeas  corpus,  as  pre- 
scribed in  this  order,  for  the  purpose  of  inquiring  into  the  cause  of 
the  imprisonment  or  restraint,  and,  in  a  case  prescribed  by  law,  of 
delivering  him  therefrom.     A  writ  of  habeas  corpus  may  be  issued 
and  served  on  any  day,  but  it  can  only  be  made  returnable  on  a  work- 
ing day. 

The  parties  to  a  case  instituted  by  the  writ  of  habeas  corpus  may 
appear  by  attorney  as  in  other  cases. 

HOW   AND   TO   WHOM   APPLICATION   FOR   WRIT   SHOULD   BE    MADE. 

II.  Application  for  the  writ  must  be  made  by  a  written  petition 
signed  either  by  the  person  for  whose  relief  it  is  intended  or  by  some 
person  in  his  behalf,  to  any  of  the  following  judges  or  tribunals,  or  to 
the  chief  justices  or  associate  justices  thereof: 

1.  The  judges  of  instruction,  in  cases  arising  out  of  the  acts  of  the 
municipal  and  correctional  judges  within  the  territorial  jurisdiction 
of  said  judges  of  instruction. 


476  LAW    OF    CTVIL    PROCEDURE. 

2.  The  audiencias  and  the  sola  de  lo  criminal  of  the  findiencia  of 
Havana,  in  cases  arising  out  of  the  acts  of  the  judges  of  instruction 
within  the  territorial  jurisdiction  of  said  audiencias  and  said  sala  de  lo 
criminal. 

3.  The  supreme  court  in  cases  arising  out  of  the  acts  of  the  audien- 
cias and  the  sola  de  lo  criminal  of  the  audiencia  of  Havana. 

4.  The  judges  of  imtruccion,  or  the  audiencias  and  the  sala  de  lo 
criminal  of  the  audiencia  of  Havana,  at  the  option  of  the  petitioner, 
in  cases  arising  out  of  the  acts  of  any  civil  authority  or  official,  or  of 
any  corporation,  association,  or  private  individual,  by  which  any  per- 
son has  been  restrained  of  his  liberty. 

When  an  audiencia  or  the  sala  de  lo  criminal  of  the  audiencia  of 
Havana  or  the  supreme  court  has  jurisdiction  the  petition  may  be  pre- 
sented to  its  chief  justice  or  any  of  its  associate  justices. 

CONTENTS   OF   PETITION. 

III.  The  petition  must  be  sworn  to  by  the  petitioner,  who  shall  be 
thus  identified  before  a  notary  public  or  the  judge  or  a  member  of  the 
tribunal  to  which  the  application  is  made,  without  cost  to  such  peti- 
tioner, and  must  state  in  substance: 

1.  That  the  person  in  whose  behalf  the  writ  is  applied  for  is  impris- 
oned or  restrained  of  his  liberty;  the  place  of  imprisonment  or  restraint, 
and  the  name  or  description  of  the  officer  or  person  by  whom  he  is 
imprisoned  or  restrained. 

2.  That  he  has  not  been  committed  and  is  not  detained  by  virtue  of 
any  judgment  of  a  judge  or  tribunal. 

3.  The  cause  or  pretense  of  the  imprisonment  or  restraint  according 
to  the  best  knowledge  and  belief  of  the  petitioner. 

4.  If  the  imprisonment  or  restraint  is  by  virtue  of  a  mandate  a  copy 
thereof  must  be  annexed  to  the  petition,  unless  the  petitioner  avers 
either  that  by  reason  of  the  removal  or  concealment  of  the  person 
imprisoned  or  restrained  before  the  application  a  demand  of  such  a 
copy  could  not  be  made,  or  that  such  a  demand  was  made  and  the  copy 
was  refused. 

5.  If  the  imprisonment  or  restraint  is  alleged  to  be  illegal,  the 
petitioner  must  state  in  what  the  alleged  illegality  consists. 

If  the  petitioner  should  not  have  knowledge  of  the  facts  referred  to 
in  Paragraph  III,  he  must  so  state. 

WHEN    WRIT    MUST   BE    GRANTED — PENALTY    FOR    REFUSING. 

IV.  A  judge  or  tribunal  authorized  to  grant  the  writ  must  grant 
it  without  delay  whenever  a  petition  therefor  is  presented,  as  pre- 
scribed in  this  order,  unless  it  appears  from  the  petition  itself  or  the 
annexed  documents  that  the  petitioner  is  not  entitled  by  law  to  prose- 
cute the  writ.     For  a  violation  of  this  paragraph,  a  judge,  or  if  the 


LAW    OF    CIVIL    PROCEDURE.  477 

application  was  made  to  a  tribunal,  each  member  of  the  tribunal  who 
assents  to  the  violation,  shall  be  jointly  and  severally  responsible  to 
the  person  imprisoned  or  restrained  in  the  sum  of  one  hundred  dollars, 
to  be  recovered  by  an  action  in  his  name. 

FORM   OF   WRIT. 

V.  The  writ  issued  as  prescribed  in  this  order  must  be  substantially 
in  the  following  form,  the  blanks  being-  properly  filled  up: 

The  People  of  the  Island  of  Cuba^  to r: 

We  command  you  that  you  have  the  body  of  — ,  by  you 

imprisoned  or  restrained  of  his  liberty,  as  it  is  said,  together  with  the 
time  and  cause  of  such  imprisonment  or  restraint,  by  whatsoever  name 

the  said  -  -  is  called  or  charged,  before (here  insert  the 

name  of  judge  or  tribunal)  at  -  -  immediately  after  the  receipt  of 
this  writ,  to  carry  out  the  order  of  the  judge  or  tribunal  then  and  there 
to  be  made,  and  bring  with  you  this  writ. 

Signed  the  --    -  day  of  -       — ,  in  the  year  19 — . 


WHEN    WRIT    SUFFICIENT. 

VI.  The  writ  shall  not  be  disobeyed  for  any  defect  of  form,  and 
particularly  in  either  of  the  following  cases: 

1.  If  the  person  having  the  custody  of  the  person  imprisoned  or 
restrained  is  designated,  either  by  his  name  of  office,  if  he  has  one,  or 
by  his  own  name;  or  if  both  names  are  unknown  or  uncertain,  by  an 
assumed  appellation.     Any  person  upon  whom  the  writ  is  served  is 
deemed  to  be  the  person  to  whom  it  is  directed,  although  it  is  directed 
to  him  by  a  wrong  name  or  description,  or  to  another  person,  provided 
that  the  person  imprisoned  or  restrained  of  his  liberty  is  in  his  custody. 

2.  If  the  person  directed  to  be  produced  is  designated  by  name  or 
otherwise  described  in  any  way,  so  as  to  be  known  to  be  the  person 
intended. 


WHEN    WRIT   TO    ISSUP]    WITHOUT   APPLICATION. 


JVII.  Where  a  judge  or  a  member  of  a  tribunal  authorized  by  this 
rder  to  grant  writs  of  habeas  corpus  has  evidence  that  any  person  is 
[legally  imprisoned  or  restrained  of  his  liberty,  within  his  jurisdic- 
ion,  he  must  issue  a  writ  of  habeas  corpus  for  the  relief  of  that  person, 
Ithough  no  application  therefor  has  been  made. 


RETURN — ITS   CONTENTS. 


VIII.  The  person  upon  whom  the  writ  has  been  duly  served  must 
state  plainly  and  unequivocally  in  his  return: 

1.  Whether  or  not  he  has,  or  at  any  time  whatsoever  had,  in  his 
custody  or  under  his  power  or  restraint,  the  person  for  whose  relief 
the  writ  was  issued. 


478  LAW    OF    CIVIL    PROCEDURE. 

2.  If  he  so  had  that  person  when  the  writ  was  served  and  still  has 
him,  he  must  state  fully  the  authority  and  true  cause  of  the  imprison- 
ment or  restraint.     If  the  person  is  detained  by  virtue  of  a  mandate, 
a  copy  thereof  must  be  annexed  to  the  return,  and  upon  the  return  of 
the  writ  the  original  must  be  produced  and  exhibited  to  the  judge  or 
tribunal. 

3.  If  he  so  had  the  person  imprisoned  or  restrained  at  any  time,  but 
has  transferred  the  custody  or  restraint  of  him  to  another,  the  return 
must  conform  to  the  return%  required  by  the  second  subdivision  of  this 
paragraph,  except  that  the  substance  of  the  mandate  may  be  given,  if 
the  original  is  no  longer  in  his  possession;  and  that  the  return  must 
state  particularly  to  whom,  at  what  time,  for  what  cause,  and  by  what 
authority  the  transfer  was  made. 

The  return  must  be  signed  by  the  person  making  it,  and  must  be 
sworn  to  by  him  in  like  manner  as  the  petition  must  be  sworn  to,  and 
without  cost. 

TIME    OF   RETURNING   WRIT. 

IX.  Where  the  writ  is   returnable  at  a  place  within  thirty  kilo- 
meters of  the  place  of  service,  the  return  must  be  made  and  the  per- 
son imprisoned  or  restrained  must  be  produced  within  twenty-four 
hours  after  service,  and  the  like  time  must  be  allowed  for  each  addi- 
tional thirty  kilometers. 

BODY  OF  PERSON  IMPRISONED  OR  RESTRAINED  TO  BE  PRODUCED. 

X.  The  person  upon  whom  a  writ  has  been  duly  served  must  also 
bring  up  the  body  of  the  person  imprisoned  or  restrained  in  his  cus- 
tody, according  to  the  command  of  the  writ,  unless  he  produces  with 
the  return  a  certificate  of  a  physician,  sworn  to  before  a  notary  public 
or  a  judge,  or  a  member  of  a  tribunal,  without  cost,  that  the  person 
imprisoned  or  restrained  is  so  sick  that  the  production  of  him  would 
endanger  his  life  or  his  health,  but  in  such  case  the  judge  or  tribunal 
may  appoint  a  physician  to  make  an  examination  and  report,  and  may 
order  the  immediate  production  of  the  person  imprisoned  or  restrained. 

PROCEEDINGS   ON   DISOBEDIENCE   OF  WRIT. 

XI.  Where  a  person  who  has  been  duly  served  with  the  writ  refuses 
or  neglects  without  sufficient  cause  shown  by  him  fully  to  obey  it,  the 
judge  or  tribunal  before  whom  or  which  it  is  made  returnable,  upon 
proof  of  proper  service  thereof,  must  immediately  issue  a  warrant  of 
arrest,  directed  generally  to  any  police  officer  of  the  island,  command- 
ing such  officer  immediately  to  apprehend  the  delinquent  and  bring 
him  before  the  judge  or  tribunal.     Upon  the  delinquent  being  so 
brought  an  order  must  be  made  committing  him  to  jail.     The  order 
must  direct  that  he  stand  committed  until  he  makes  return  to  and  obeys 
the  writ. 


LAW    OF    CIVIL    PROCEDURE.  479 

ORDER  TO   PRODUCE   PERSON    IMPRISONED   OR   RESTRAINED. 

XII.  The  judge  or  tribunal  may  also,  in  his  or  its  discretion,  at  the 
time  when  the  warrant  of  arrest  is  issued  or  afterwards,  issue  an  order 
to  the  police  officer  to  whom  the  warrant  is  directed,  commanding  him 
immediately  to  bring  before  the  judge  or  tribunal  the  person  for 
whose  benefit  the  writ  was  granted,  who  must  thereafter  remain  in  the 
custody  of  the  officer  executing  the  order  until  discharged,  admitted 
to  bail,  or  remanded,  as  the  judge  or  tribunal  may  direct. 

PROCEEDINGS   ON   RETURN   OF   WRIT. 

XTTT.  The  judge  or  tribunal  before  whom  or  which  the  person 
imprisoned  or  restrained  is  brought  by  virtue  of  the  writ  issued  as 
prescribed  in  this  order  must  immediately  after  the  return  of  the 
writ  hear  the  evidence,,  examine  into  the  facts  alleged  in  the  return 
and  into  the  cause  of  the  imprisonment  or  restraint  of  the  person 
imprisoned  or  restrained,  and  must  make  an  order  to  discharge  him 
therefrom  if  no  legal  cause  for  the  imprisonment  or  restraint  or  for 
the  continuation  thereof  is  shown. 

WHEN   PERSON   IMPRISONED   OR   RESTRAINED   TO   BE    REMANDED. 

XIV.  The  judge  or  tribunal  must  immediately  make  an  order  to 
remand  the  person  imprisoned  or  restrained,  if  it  appears  that  he  is 
detained  in  custody  by  virtue  of  the  judgment  of  a  competent  judge  or 
tribunal,  and  that  the  tune  for  which  he  may  legally  be  so  detained 
has  not  expired. 


PROCEEDINGS   ON   IRREGULAR   COMMITMENT. 


XV.  If  it  appears  that  the  person  imprisoned  or  restrained  has  been 
legally  committed  for  a  criminal  offense,  or  if  he  appears  by  the  testi- 
mony offered  with  the  return,  or  upon  the  hearing  thereof,  to  be  guilty 
of  such  an  offense,  although  the  commitment  is  irregular,  the  judge  or 

tribunal,  before  whom  or  which  he  is  brought,  must  immediately  make 
in  order  to  discharge  him  upon  his  giving  bail,  if  the  case  is  bailable, 
>r  if  it  is  not  bailable  to  remand  him. 


BAIL — WHEN    AND    HOW   ORDERED. 


XVI.  If  upon  the  return  to  a  writ  issued  as  prescribed  in  this  order 
it  appears  that  the  person  imprisoned  or  detained  is  entitled  to  be 

(bailed,  the  judge  or  tribunal  must  make  an  order  fixing  the  sum  in 
which  he  is  to  be  admitted  to  bail,  and  directing  his  discharge  upon 
bail  being  given  accordingly,  as  required  by  law.  If  sufficient  bail  is 
immediately  offered,  the  judge  or  tribunal  must  take  it;  otherwise  bail 
may  be  given  afterwards  to  the  judge  or  tribunal  who  or  which  origi- 
nally committed  the  person  imprisoned  or  restrained. 


480  LAW    OF    CIVIL    PROCEDURE. 

WHEN    PERSON    IMPRISONED    OR    RESTRAINED    MAY     BE    COMMITTED    TO 

ANOTHER   OFFICER. 

XVII.  Where  a  person  imprisoned  or  restrained  is  not  entitled  to 
his  discharge  and  is  not  bailed,  he  must  be  remanded  to  the  custody  or 
placed  under  the  restraint  from  which  he  was  taken,  unless  the  person 
in  whose  custody  or  under  whose  restraint  he  was,  is  not  legally  entitled 
thereto;  in  which  case  the  order  remanding  him  must  commit  him  to 
the  custody  of  the  officer  or  person  so  entitled. 

CUSTODY    OF   PERSON    IMPRISONED   OR   RESTRAINED   PENDING 
PROCEEDINGS. 

XVIII.  Pending  the  proceedings  on  habeas  corpus  the  judge  or  tri- 
bunal before  whom  or  which  the  person  imprisoned  or  restrained  is 
brought  may  either  commit  him  to  the  custody  of  the  keeper  of  the 
jail  where  the  proceedings  are  pending,  or  place  him  in  such  care  or 
custody  as  his  age  and  other  circumstances  require. 

NOTICE     TO     BE     GIVEN     BEFORE    DISCHARGING   PERSON   IMPRISONED   OR 

RESTRAINED. 

XIX.  Where  it  appears  from  the  return  that  the  person  imprisoned 
or  restrained  is  in  custody  by  virtue  of  a  mandate,  notice  of  the  hear- 
ing must  be  given  to  the  representative  of  the  fiscal  of  the  tribunal  in 
which  the  case  is  pending. 

PERSON   IMPRISONED   OR   RESTRAINED   MAY   CONTROVERT   RETURN. 

XX.  A  person  imprisoned  or  restrained,  produced  upon  the  return 
of  a  writ,  may  give  testimony,  under  oath,  showing  either  that  his 
imprisonment  or  detention  is  illegal  or  that  he  is  entitled  to  his  dis- 
charge.    The  judge  or  tribunal  must  then  proceed  in  a  summary  way 
to  hear  the  evidence  produced  in  support  of  or  against  the  imprison- 
ment or   detention,    and   to   dispose  of    the   person   imprisoned    or 
restrained,  as  the  justice  of  the  case  requires.     In  the  course  of  such 
hearing  the  judge  or  tribunal  may  examine  the  person  imprisoned  or 
restrained,  and  any  other  witnesses  whom  in  his  or  its  judgment  it  may 
be  desirable  to  hear;  and  for  this  purpose  an  adjournment  may  be 
taken,  not  exceeding  three  days,  except  on  the  petition  of  the  person 
imprisoned  or  restrained. 

PROCEEDINGS   ON   SICKNESS   OF   PERSON   IMPRISONED   OR   RESTRAINED. 

XXI.  In  case  of  the  sickness  referred  to  in  paragraph  X  of  this 
order,  if  the  return  be  in  the  proper  form,  and  if  the  judge  or  tribu- 
nal accepts  the  truthfulness  of  the  physician's  certificate,  the  applica- 
tion shall  be  decided  as  if  the  person  imprisoned  or  restrained  wen*. 


LAW    OF    CIVIL    PROCEDURE.  481 

present;  but  the  representative  of  such  person  shall  be  heard  in  his 
behalf  without  the  necessity  of  any  express  power  being  granted. 

OBEDIENCE  TO  ORDER  TO  DISCHARGE:  HOW  ENFORCED. 

XXII.  Obedience  to  an  order  to  discharge  a  person  imprisoned  or 
restrained  may  be  enforced  by  the  tribunal  which  or  the  judge  who 
made  the  same,  by  warrant  of  arrest,  with  like  effect  as  in  case  of  a 
neglect  to  make  a  return  to  a  writ  of  habeas  corpus.     A  person  guilty 
of  such  disobedience  shall  forfeit  to  the  person  imprisoned  or  restrained 
one  hundred  dollars,  to  be  recovered  by  an  action  in  his  name. 

WHEN    DISCHARGE   A   BAR   TO   REIMPRISONMENT. 

XXIII.  A  person  imprisoned  or  restrained  who  has  been  discharged 
by  an.  order  made  upon  a  writ  of  habeas  corpus  shall  not  be  again 
imprisoned,  restrained,  or  kept  in  custody  for  the  same  cause.     But 
it  is  not  deemed  to  be  the  same  cause  in  either  of  the  following  cases: 

.  1.  Where  he  has  been  discharged  from  a  commitment  on  a  criminal 
charge,  and  is  afterwards  committed  for  the  same  offense  by  the  legal 
mandate  or  other  order  of  the  tribunal  wherein  he  was  required  by 
bail  bond  to  appear,  or  in  which  he  has  been  convicted  for  the  same 
offense. 

2.  Where  he  has  been  discharged  in  a  criminal  case  for  defect  of 
proof,  or  for  defect  in  the  commitment,  and  is  afterwards  arrested  on 
sufficient  proof  and  committed  by  a  legal  mandate  for  the  same  offense. 

VIOLATION    OF   LAST   PARAGRAPH. 

XXIV.  If  a  member  of  a  tribunal  or  judge  or  any  other  person  in 
manner  knowingly  violates,  causes  to  be  violated,  or  assists  in  the 

dolation  of  the  last  paragraph,  he,  or  if  the  act  or  omission  was  that 
a  tribunal,  each  member  of  the  tribunal  assenting  thereto,  shall  be 
>intly  and  severally  liable  to  the  person  imprisoned  or  restrained  in 
sum  of  one  hundred  dollars,  to  be  recovered  by  an  action  in  his 
ne. 

iNSFER    OR    CONCEALMENT   OF    PERSON    IMPRISONED   OR   RESTRAINED 
TO   ELUDE   WRIT. 

XXV.  Any  one  having  in  his  custody  or  under  his  power  a  person 
mtitled  to  a  writ  of  habeas  corpus,  or  a  person  for  whose  relief  a  writ 

has  been  duly  issued,  who,  with  intent  to  elude  the  service  of  the  writ 

fto  avoid  the  effect  thereof,  transfers  the  person  imprisoned  or 
trained  to  the  custody,  or  places  him  under  the  power  of  another, 
conceals  him,  or  changes  the  place  of  his  confinement,  shall  be 
oiinally  responsible  for  the  offense  committed  in  addition  to  the 
2901 31 


482  LAW    OF    CIVIL    PEOCEDUEE. 

pecuniary  liability  provided  for  on  the  preceding  paragraph,  and  a 
person  who  knowingly  assists  therein  shall  be  equally  liable. 

ORDER    WHEN   PERSON    RESTRAINED     ABOUT     TO    BE     CARRIED     OUT    OP 

ISLAND. 

XXVI.  Where  it  appears  by  proofs  satisfactory  to  a  member  of  a 
tribunal  or  judge  authorized  to  grant  the  writ  that  a  person  is  held  in 
illegal  confinement  or  custody,  and  that  there  is  good  reason  to  believe 
that  he  will  be  carried  out  of  the  island,  the  member  of  the  tribunal  or 
judge  must  immediately  make  an  order  to  prevent  it,  directed  to  any 
officer  or  person,  and  commanding  him  to  take  and  immediately  bring 
before  the  tribunal  or  judge  the  person  restrained,  to  be  dealt  with 
according  to  law. 

In  this  case,  if  the  person  who  deprived  the  other  of  his  liberty  be 
present,  he  will  be  notified  of  the  order  made,  which  will  have  all  the 
effects  of  a  writ  of  habeas  corpus  so  far  as  he  is  concerned,  and  he  shall 
immediately  make  return. 

ARREST   OF   THE   PERSON    DETAINING   THE   PERSON   RESTRAINED. 

XXVII.  Where  the  facts  mentioned  in  the  last  paragraph  are  also 
sufficient  to  justify  an  arrest  of  the  person  having  the  person  restrained 
in  his  custody,  as  for  a  criminal  offense  committed  in  taking  or  detain- 
ing him,  the  order  must  also  contain  a  direction  to  arrest  that  person 
for  the  offense,  bringing  the  person  arrested  before  the  proper  judge 
or  tribunal. 

PROCEEDING   WHERE   A   WRIT    IS    REFUSED   BY   JUDGE    OF   INSTRUCCl6N. 

XXVIII.  In  cases  where  judges  of  instruGd6n  have  jurisdiction  to 
grant  writs  of  habeas  corpus  and  refuse  to  do  so,  the  petitioner  may 
apply  to  the  chief  justice  or  any  associate  justice  of  the  audiencia  of 
the  district,  or,  in  a  proper  case,  to  the  sola  de  lo  criminal  of  the  au- 
diencia of  Havana,  setting  forth,  on  oath,  the  fact  of  the  refusal  of 
the  judge  of  instruction. 

WHEN    SUBSEQUENT   WRIT   MAY   ISSUE. 

XXIX.  But  one  petition  for  habeas  corpus  can  be  made  for  the 
same  imprisonment  or  deprivation  of  liberty,  unless  new  facts  are 
alleged  which  destroy  the  reasons  which  justified  the  former  decision; 
which  new  facts  must  be  stated,  on  oath,  in  the  petition,  and  their 
sufficiency  will  be  judged  by  the  judge  or  associate  justice  to  whom  it 
is  issued.     The  person  on  whom  a  writ  is  served  shall  state  in  his 
return  whether  a  previous  writ  has  been  issued  for  the  same  imprison- 
ment or  restraint,  and  if  there  has  been  a  previous  writ,  the  judge  or 
tribunal  shall  summarily  dismiss  the  application,  except  in  the  cases 
herein  provided  for. 


LAW    OF    CIVIL    PKOCEDUEE.  483 

PENALTY   FOR   REFUSING   COPY   OF  PROCESS. 

XXX.  Any  person  who  detains  anyone  by  virtue  of  any  written 
authority  must  deliver  a   copy  thereof  to   the  person   arrested  or 
restrained,  or  to  any  person  who  applies  therefor  for  the  purpose  of 
obtaining  a  writ  of  habeas  corpus  in  behalf  of  the  person  imprisoned 
or  restrained.     If  he  refuses  to  do  so,  he  forfeits  one  hundred  dollars 
to  the  person  imprisoned  or  restrained,  to  be  recovered  by  an  action 
in  his  name. 

REPEALING   PARAGRAPH. 

XXXI.  All  laws,  orders,  decrees,  or  parts  thereof,  existing  in  the 
island  of  Cuba  which  conflict  with  the  provisions  of  this  order  are 
hereby  repealed. 

WHEN   THIS   ORDER   TAKES  EFFECT. 

XXXII.  The  provisions  of  this  order  shall  go  into  effect  December 
1,  1900. 

J.  B.  HlCKEY, 

Assistant  Adjutant-  General. 


No.  438. 

HEADQUARTERS  DIVISION  OF  CUBA, 

Havana,  October  %1, 1900. 

The  military  governor  of  Cuba,  upon  the  recommendation  of  the 
secretary  of  justice,  directs  the  publication  of  the  following  order: 

kl.  The  required  preparation  of  the  "  apuntamiento"  established  by 
e  Law  of  Civil  Procedure  in  the  proceedings  in  matters  of  appeal  of 
tiich  the  audiencias  have  cognizance,  which  matters  shall  be  proceeded 
with  in  conformity  with  the  other  requirements  provided  for  by  said 
tw,  is  hereby  revoked  and  abolished. 

II.  In  lieu  of  the  "  apuntamiento,"  which  is  abolished  by  this  order, 
iere  shall  always  be  sent  to  the  supreme  court  the  original  judicial 

>rds  of  proceedings  in  matters  of  appeal. 

III.  The  provisions  of  this  order  are  applicable  to  lawsuits  pending 
the  present  time  before  the  audiencias. 

IV.  All  rulings  antagonistic  to  those  contained  in  this  order  are 
>by  abolished. 

J.  B.  HICKEY, 
Assistant  Adjutant-  General. 


APPENDIX  II. 

CHANGES  IN  AND  AMENDMENTS  TO  THE  CIVIL  PROCEDURE  OF  THE  ISLAND  OF 
PORTO  RICO  MADE  BY  THE  MILITARY  GOVERNMENT  DURING  THE  YEARS 
1898,  1899,  AND  1900. 

GENERAL  ORDERS,  |  HEADQUARTERS  DEPARTMENT 

OF  PORTO  Rico, 
No.  19.  San  Juan,  December  0,  1898. 

I.  The  full  bench  of  the  supreme  court  of  justice,  consisting  of 
seven  magistrates,  including  the  president,  shall  hear  all  the  appeals 
pending  decision,  as  well  as  those  that  may  hereafter  be  established 
and  are  authorized  by  the  laws  of  civil  and  criminal  procedure,  which, 
under  the   Spanish   regime,    devolved   upon   the   supreme  court   of 
Madrid,  whose  jurisdiction  regarding  this  island  ceased  by  virtue  of 
the  peace  protocol. 

II.  In  cases  of  incompatibility,  vacancy,  or  absence,  the  incumbent 
magistrates  shall  be  substituted  b}^  the  assistant  or  vice-magistrate, 
and  in  default  of  these,  by  the  primary  court  judges  of  the  capital. 

III.  Causes  where  the  death  penalty  has  been  demanded  will  be 
heard  and  decided  by  a  bench  composed  of  three  full  magistrates  and 
two  assistant  magistrates,  and  in  default  of  these,  by  the  primary 
court  judges  of  the  capital,  provided  there  be  no  incompatibility. 

IV.  The  appeals  forwarded  to  and  still  pending  decision  at  the  afore- 
said supreme  court  of  Madrid  shall  be  claimed  through  diplomatic 
channels,  without  detriment  to  the  action  taken  for  that  object  by  the 
parties  concerned;  and  upon  their  return  shall  be  transferred  to  the 
hearing  of  the  supreme  court  of  justice. 

V.  The  exposition  or  report  referred  to  in  art.  948  of  the  law  of 
-irninal  procedure  in  cases  of  death  penalty  shall  be  addressed  to  the 

retary  of  justice,  in  order  that  he  may  propose,  should  he  deem  it 
equitable,  commutation  of  the  penalty  to  the  military  commander, 
partment  of  Porto  Rico. 

VI.  In  like  manner  the  supreme  court  of  justice  shall  hear  the 
peals   which",  under  the  late   regime,  in   administrative  matters, 

evolved  upon   the   supreme   court  established  for  the  purpose  at 

rid. 
By  command  of  Major-General  Brooke: 

M.  V.  SHERIDAN, 

Brigadier- General,  U.  S.   V.,  Chief  of  Staff. 

485 


crii 

sec 


486  LAW    OF    CIVIL    PROCEDURE. 

GENERAL  ORDERS,  j  HEADQUARTERS  DEPARTMENT 

OF  PORTO  Rico, 

Na  71<  San  Juan,  May  31,  1899. 

Upon  the  recommendation  of  the  secretary  of  justice,  the  following 
is  promulgated: 

I.  Any  justice  of  the  supreme  court  of  Porto  Rico,  or  of  any  audien- 
cia,  or  any  judge  of  instruction,  shall  issue  the  writ  of  habeas  corpus 
on  the  petition  of  any  person  who  is  restrained  of  his  liberty  within 
their  respective   judicial  districts.     But  when  such   writ  so  issuing 
from  such  court  is  served  upon  any  person  who  holds  a  prisoner  sub- 
ject to  United  States  authority,  the  body  of  the  prisoner  will  not  be 
produced,  but  respectful  return  will  be  made  setting  forth  that  the 
prisoner  is  held  under  color  of  the  authority  of  the  United  States,  and 
that  therefore  the  court  issuing  the  writ  is  without  jurisdiction,  and 
praying  that  the  writ  be  therefore  dismissed. 

II.  Upon  ascertainment  by  such  judge  or  court  issuing  the  writ 
that  such  return  is  true  in  fact,  the  writ  shall  be  dismissed. 

III.  The  secretary  of  justice  will  see  that  this  order  is  duly  observed. 
Instructions,  approved  by  the  commanding  general,  and  printed  blank 
forms  will  be  supplied  on  application  to  the  secretary  of  justice. 

By  command  of  Brigadier-General  Davis: 

W.  P.  HALL, 
Adjutant-  General. 


CIRCULAR  )       HEADQUARTERS  DEPARTMENT  OF  PORTO  Rico, 
No.  17.     i  San  Juan,  July  3,  1899. 

Referring  to  General  Orders,  No.  71,  current  series,  from  these 

headquarters,  the  following  instructions  are  published: 

1.  A  writ  of  habeas  corpus — in  general  terms — is  one  that  is  issued 
for  the  delivery  of  a  prisoner  to  the  authority  issuing  same,  by  the 
person  who  has  him  in  custody,  for  the  purpose  of  ascertaining  and 
deciding  without  delay  whether  the  prisoner  should  continue  in  con- 
finement, have  his  bail  reduced  or  altered,  or  be  released  on  his  own 
recognizance. 

2.  The  petition  for  a  writ  of  habeas  corpus  must  be  made  by  address- 
ing an  application  in  writing  to  any  of  the  authorities  enumerated  in 
paragraph  1  of  General  Orders,  No.  71,  current  series!     In  said  peti- 
tion the  party  concerned  shall  set  forth:  What  authority  or  person 
ordered  his  arrest;  the  date  thereof;  the  causes  that  led  to  his  impris- 
onment; the  place  of  his  confinement;  whether  he  is  held  without  bail, 
or  in  case  bail  has  been  required,  the  amount  of  same;  the  allegations 
he  may  see  fit  to  advance  in  support  of  his  petition;  the  evidence  he 
may  have  to  substantiate  said  allegations;  and  lastly,  a  request  that 


LAW    OF    CIVIL    PROCEDURE.  487 

the  writ  of  habeas  corpus  be  issued,  and  that,  after  the  proper  formal- 
ities, he  be  ordered  released  under  his  own  recognizance,  or  his  bail 
fixed  or  reduced. 

3.  Upon  receipt  of  this  petition  by  the  judge  or  court  to  whom  it  is 
addressed,  should  he  have  no  jurisdiction  over  the  party  concerned,  he 
shall  forthwith  refer  said  petition  to  the  nearest  authorit}^  having  such 
jurisdiction,  giving  due  notice  thereof  to  the  petitioner. 

4.  When  the  petition  has  reached  the  hands  of  a  judicial  authority 
having  jurisdiction  over  the  petitioner,  he  shall  immediately  issue  a 
writ  of  habeas  corpus,  to  be  served  upon  the  party  who  has  the  custody 
of  the  petitioner,  ordering  the  prisoner  to  be  brought  before  him,  and 
the  writ  returned  with  a  statement  thereon  as  to  the  causes  of  the 
imprisonment,  the  manner  in  which  it  was  ordered,  and  the  time  the 
prisoner  has  been  confined. 

5.  When  the  prisoner  has  been  brought  before  the  authority  issuing 
the  writ  of  habeas  corpus,  he  shall  be  examined  under  oath  as  to  the 
truth  of  the  statements  contained  in  the  petition.     He  shall  then  be 
made  cognizant  of  the  report  of  his  custodian,  indorsed  upon  the  writ. 
The  evidence  offered  by  him  in  support  of  his  statements  shall  be  briefly 
heard  or  examined  in  his  presence  within  the  term  he  may  demand 
therefor,  should  such  evidence  be  necessary  for  the  purpose. 

6.  On  the  day  following  the  last  one  of  the  term  fixed  for  verification 
of  the  evidence  the  aforesaid  authority,  after  duly  weighing  the  same 
and  taking  into  account  the  petitioner's  allegations,  shall  decide  thereon, 
according  to  law  and  justice. 

7.  All  persons  indicted  for  an  offense  the  penalty  whereof  is  less 
than  that  of  corrective  confinement  shall  remain  at  large.     All  those 
indicted  for  offenses  whereof  the  penalty  is  greater  than  that  of  cor- 
rective confinement  shall  be  admitted  to  bail,  in  cash  or  property,  in 
proportion  to  the  gravity  of  the  offense  and  the  injury  caused  by  it, 

;cept  in  cases  of  murder. 

When  the  party  requesting  a  writ  of  habeas  corpus  does  not 
reside  in  the  same  city  or  town  with  the  authorities  enumerated  in 
,ragraph  1  of  General  Orders,  No.  71,  current  series,  said  authori- 
ies  may  designate  the  inferior  authority  before  whom  the  prisoner 
lould  be  brought  by  his  custodian,  and  who  is  to  verify  the  evidence, 
.n  endorsement  to  that  effect  being  made  upon  the  writ. 

9.  When  by  virtue  of  a  writ  of  habeas  corpus  the  release  of  a 
u-isoner  or  the  reduction  of  his  bail  has  been  ordered,  the  judicial 
Authority  issuing  same  shall  forward  a  copy  of  said  decision  to  the 
judge  or  court  where  the  prisoner  is  being  tried  in  order  that  it  may 
be  joined  to  the  record  of  the  case. 

tlO.  The  writ  of  habeas  corpus  and  the  decision  given  by  reason 
ereof  shall  not  affect  the  final  judgment  that  eventually  may  be 
ven  in  the  prosecution  instituted  against  the  party  requesting  it. 


• 


488  LAW    OF    CIVIL    PEOCEDUEE. 

Its  object  is  only  to  prevent  the  undue  prolongation  of  his  detention 
in  jail. 

11.  The  writ  of  habeas  corpus  shall  be  issued  without  cost  to  the 
petitioner. 

By  command  of  Brigadier-General  Davis: 

W.  P.  HALL, 
Adjutant-  General. 


GENERAL  ORDERS,  j  HEADQUARTERS  DEPARTMENT 

OF  PORTO  Rico, 
No.  88.  )  San  Juan,  June  27,  1899. 

I.  In  view  of  existing  and  steadily  increasing  legal  business  requir- 
ing judicial  determination  which    does  not  fall  within  the  jurisdic- 
tion of  the  local  insular  courts,  such  as  smuggling  goods  in  evasion 
of  revenue  laws,  larceny  of  United  States  property,  controversies 
between  citizens  of  different  States  and  of  foreign  States,  violation  of 
the  United   States  postal  laws,  &c.,  &c.,  and  pursuant  to  authority 
from  the  President  of  the  United  States,  conveyed  by  endorsement  of 
April  14,  1899,  from  the  Acting  Secretary  of  War,  and  after  full  con- 
ference with  the  supreme  court  and  members  of  the  bar  of  the  island, 
a  United  States  provisional  court  is  hereby  established  for  the  Depart- 
ment of  Porto  Rico. 

II.  The  judicial  power  of  the  provisional  court  hereby  established 
shall  extend  to  all  cases  which  would  be  properly  cognizable  by  the 
circuit  or  district  courts  of  the  United  States  under  the  Constitution, 
and  to  all  common-law  offences  within  the  restrictions    hereinafter 
specified. 

III.  Art.  Ill,  sec.  2,  paragraph  1,  of  the  Constitution  is  as  follows: 
1.   "The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 

arising  under  this  Constitution,  the  laws  of  the  United  States,  and 
treaties  made,  or  which  shall  be  made,  under  their  authority;  to  all 
cases  affecting  ambassadors,  other  public  ministers  and  consuls;  to  all 
cases  of  admiralty  and  maritime  jurisdiction;  to  controversies  to  which 
the  United  States  shall  be  a  party;  to  controversies  between  two  or 
more  States;  between  a  State  and  citizens  of  another  State;  between 
citizens  of  different  States;  between  citizens  of  the  same  State  claiming 
lands  under  grants  of  different  States,  and  between  a  State,  or  the  cit- 
izens thereof,  and  foreign  States,  citizens,  or  subjects." 

IV.  The  decisions  of  said  court  shall  follow  the  principles  of  com- 
mon law  and  equity  as  established  by  the  courts  of  the  United  States, 
and  its  procedure,  rules,  and  records  shall  conform  as  nearly  as  prac- 
ticable to  those  observed  and  kept  in  said  Federal  courts.     Its  terms 
and  places  of  sitting  shall  be  fixed  by  the  court  at  such  times  and 
places  as  may  be  most  convenient  for  the  parties  litigant  and  to  insure 
the  expeditious  transaction  of  business. 


«. 


LAW    OF    CIVIL    PROCEDURE.  489 

V.  The  provisional  court  shall  consist  of  three  judges,  one  of  whom 
shall  be  known  as  the  law  judge  and  the  other  two  as  associate  judges, 
one  United  States  district  attorney,  one  marshal,  one  clerk,  three 
deputy  clerks,  one  stenographer  and  reporter,   one  interpreter,  one 
bailiff  and  janitor,  and  one  messenger.     The  law  judge  shall  preside 
and  shall  determine  and  decide  all  technical  questions  of  law.     A 
majority  vote  of  the  bench  shall  determine  all  questions  of  fact.     The 
jury  system  may  be  introduced  or  dispensed  with  in  any  particular 
case  in  the  discretion  of  the  court. 

VI.  The  judges  of  the  provisional  court  shall  be  clothed  with  the 
powers  vested  in  the  judges  of  the  circuit  or  district  courts  of  the 
United  States. 

VII.  The  district  attorney  shall  be  authorized  to  present  to  the 
court  informations  against  all  parties  for  violations  of  United  States 
statutes  and  regulations.     He  shall  also  in  like  manner  present  infor- 
mations for  violations  of  orders  issued  by  the  department  commander, 
relating  to  civil  matters,  which  may  be  referred  to  him  from  these 
headquarters.     It  shall  also  be  his  duty  to  represent  the  United  States 
in  all  suits  to  which  it  is  a  party,  and  to  perform  such  other  duties  as 
usually  pertain  to  the  district  attorneys  in  the  Federal  courts  of  the 
United  States. 

VIII.  In  order  to  define  more  clearly  certain  branches  of  the  criminal 
jurisdiction  of  the  provisional  court,  it  is  hereby  provided  that  it  shall 
include  and  be  exclusive  in  the  following  classes  of  cases: 

First.  All  offences  punishable  under  the  statutory  laws  of  the  United 
States,  such  as  those  indicated  in  Paragraph  I  of  this  order. 

Second.  Offences  committed  by  or  against  persons,  foreigners  or 
mericans,  not  residents  of  this  department,  but  who  may  be  traveling 
or  temporarily  sojourning  therein,  or  against  the  property  of  non- 
residents. 

Third.  Offences  against  the  person  or  property  of  persons  belonging 
the  army  or  navy,  or  those  committed  by  persons  belonging  to  the 
army  or  navy,  not  properly  triable  by  military  or  naval  courts;  but 
ot  including  minor  police  offences. 

Fourth.  Offences   committed  by  .or  against  foreigners   or  by  or 
inst  citizens  of  another  State,  district,  or  Territory  of  the  United 
States,  residing  in  this  department. 

IX.  Cases  arising  under  Article  XI  of  the  Treaty  of  Peace  between 
e  United  States  and  Spain  will  be  determined  as  therein  provided. 

X.  In  civil  actions  when  the  amount  in  controversy  is  fifty  dollars 
$50)  or  over,  and  in  which  any  of  the  classes  of  persons  above  enu- 

erated  in  Paragraph  VIII  are  parties,  or  in  which  the  parties  litigant 
>y  stipulation  invoke  its  jurisdiction,  shall  be  brought  in  the  provi- 
sional court:  Provided,  That  in  the  determination  of  all  suits  to  which 
or  to  Ricans  are  parties,  or  of  suits  arising  from  contracts  which  have 


490  LAW    OF    CIVIL    PROCEDURE. 

been  or  shall  be  made  under  the  provisions  of  Spanish  or  Porto  Rican 
laws,  the  court  shall,  as  far  as  practicable,  conform  to  the  precedents 
and  decisions  of  the  U.  S.  courts  in  similar  cases  which  have  been  tried 
and  determined  in  territory  formerly  acquired  by  the  United  States 
from  Spain  or  Mexico.  In  all  other  civil  actions  the  case  shall  lie 
within  the  jurisdiction  of  the  proper  insular  court  as  now  provided 
by  local  law. 

XI.  If  any  party  litigant  shall  feel  aggrieved  by  the  judgment  or 
decree  of  said  court,  a  stay  of  ninety  days  shall  be  granted  such  party 
before  the  execution  of  such  judgment  or  decree,  upon  the  filing  of  a 
bond  by  him  with  sureties  in  an  amount  and  with  such  conditions  as 
the  court  may  determine,  for  the  purpose  of  allowing  such  party  to 
make  application  to  the  Supreme  Court  of  the  United  States  for  a 
writ  of  certiorari  or  other  suitable  process  to  review  such  judgment  or 
decree.     But  if  at  the  end  of  said  ninety  days  such  process  has  not 
been  issued  by  the  Supreme  Court  execution  shall  forthwith  issue. 

XII.  The  department  commander  will  exercise  the  power  of  pardon, 
commutation,  or  mitigation  of  punishment  in  criminal  cases. 

XIII.  All  fees,  fines,  and  costs  paid  to  the  clerk  of  the  provisional 
court  shall  be  turned  over  by  him  at  the  end  of  each  calendar  month 
to  the  treasurer  of  the  island  with  a  statement  of  the  sources  from 
which  they  are  received. 

XIV.  Members  of  the  bar  of  Porto  Rico  will  be  admitted  to  prac- 
tice in  the  provisional  court  upon  presentation  of  a  certificate  signed 
by  the  president  of  the  supreme  court  of  Porto  Rico  certifying  to 
their  professional  standing. 

XY.  All  lawyers  practicing  in  the  provisional  court  who  are  unfa- 
miliar with  the  English  language  shall  be  permitted,  upon  application, 
to  use  their  own  interpreter  when  addressing  the  court. 

XVI.  The  court  shall  adopt  an  appropriate  seal  which  will  be  pro- 
cured by  the  treasurer  of  the  island.     The  clerk  of  the  court  shall 
have  the  custody  of  the  seal  for  use  in  attesting  legal  documents  in 
the  usual  manner. 

XVII.  In  accordance  with  the  provisions  of  Paragraph  V  of  this 
order,  the  following  appointments  are  announced  to  take  efl'ect  July 
1st,  1899: 

To  be  law  judge,  Noah  Brooks  Kent  Pettingill. 

To  be  provisional  United  States  attorney,  J .  Marbourg  Keedy. 

The  following  officers  are  hereby  detailed  on  the  special  duty  set 
opposite  their  respective  names: 

Major  Eugene  D.  Dimmick,  5th  U.  S.  Cavalry,  Major  Earl  D. 
Thomas,  5th  U.  S.  Cavalry,  associate  judges  of  the  U.  S.  provisional 
court. 

1st  Lieutenant  Robert  Alexander,  llth  U.  S.  Infantry,  clerk  of  the 
U.  S.  provisional  court. 


LAW    OF    CIVIL    PROCEDURE.  491 

Private  Samuel  C.  Bothwell,  Troop  D,  5th  U.  S.  Cavalry,  is  detailed 
on  special  duty  as  marshal  of  the  U.  S.  provisional  court. 
The  necessary  deputies  will  be  detailed  in  subsequent  orders. 
The  officers  named  will  proceed  to  San  Juan  and  report  to  the 
adjutant-general  of  the  department. 

The  travel  enjoined  is  necessary  for  the  public  service. 
By  command  of  Brigadier-General  Davis. 

W.  P.  HALL, 

Adjutant-  General. 


GENERAL  ORDERS,  )  HEADQUARTERS  DEPARTMENT 

OF  PORTO  Rico, 

No.  118.  )  San  Juan,  August  16,  1899. 

Upon  the  recommendation  of  the  judicial  board  the  following  reor- 
ganization and  functions  of  the  judiciary  of  this  island  were  approved 
on  August  10th,  1899,  and  are  published  for  the  information  and  guid- 
ance of  all  concerned: 

1.  The  organization  and  functions  of  the  courts  of  justice  of  this 
island  will  from  the  10th  inst.  undergo  reforms  in  accordance  with  the 
following  dispositions: 

2.  There  shall  be  a  supreme  court  of  justice  with  fixed  residence  in 
the  city  of  San  Juan,  composed  of  a  chief  justice  and  four  associate 
justices,  who  jointly  will  constitute  a  judicial  bench  for  all  civil  and 
criminal  business;  the  court  shall  also  have  a  prosecuting  attorney,  one 
secretary,  two  court  clerks,  one  file  clerk  and  taxer  of  costs,  six  clerks, 
one  janitor,  and  two  bailiffs. 

3.  The  island  is  divided  into  five  judicial  districts,  whose  respective 
seats  shall  be  San  Juan,  Ponce,  Mayaguez,  Arecibo,  and  Humacao. 

4.  The  judicial  district  of  San  Juan  will  comprise  the  following 
municipalities:  The  city  of  San  Juan,  Vega-baja,  Vega-alta,  Corozal, 
Naranjito,  Toa-alta,  Toa-baja,  Dorado,  Bayamon,  Rio-piedras,  Trujillo- 
alto,  Carolina,  Rio-grande,  Loiza,  Caguas,  Aguas-buenas,  Comerio, 

yey,  and  Cidra. 

5.  The  judicial  district  of  Arecibo   will   comprise  the  following 
unicipalities:  Arecibo,  Manati,  Morovis,  Ciales,  Barceloneta,  Utuado, 

tillo,  Camuy,  Quebradillas,  and  Lares. 

6.  The  judicial   district  of   Humacao  will  comprise  the  following 
unicipalities:  Humacao,  Piedras,  Naguabo,  Fajardo,  Yabucoa,  Mau- 
,bo,  Juncos,  Gurabo,  San  Lorenzo,  Patillas,  and  Vieques. 

7.  The  judicial  district  of  Mayaguez  will  comprise  the  following 
unicipalities:  Mayaguez,  Anasco,  Rincon,  Aguada,  Aguadilla,  Moca, 

Isabela,  San  Sebastian,  Las  Marias,  Maricao,  San  German,   Sabana- 
grande,  La]as,  and  Cabo-rojo. 


492  LAW    OF    CIVIL    PROCEDURE. 

8.  The  judicial  district  of  Ponce  will  comprise  the  following  munici- 
palities:   Ponce,   Juana-Diaz,    Coamo,    Barros,    Adjuntas,    Penuelas, 
Salinas,  Guayanilla,  Yauco,  Guayama,  Santa  Isabel,  Aibonito,  Barran- 
quitas,  and  Arroyo. 

9.  Justice  in  civil  and  criminal  matters  will  be  administered  in  each 
district  by  a  court  established  in  its  respective  capital.     These  courts 
will  have  exclusive  jurisdiction  and  public  oral  trial  of  all  classes  of 
civil  and  criminal  matters,  under  the  forms  and  procedure  established 
further  on  in  this  general  order. 

10.  Each  district  court  will  be  composed  of  three  judges,  one  of 
whom  shall  be  presiding  judge,  and  who  jointly  shall  constitute  a  bench 
for  civil  and  criminal  business.    To  each  district  court  there  shall  be 
attached  a  prosecuting  attorney,  who  will  represent  the  law  in  criminal 
cases,  and  in  civil  cases  when  in  order. 

11.  The  district  court  will  be  assisted  by  one  secretary,  two  chamber 
clerks,  one  court  janitor,  and  two  bailiffs. 

12.  The  civil  suits  in  progress  of  appeal  before  the  supreme  court 
will  be  transferred  to  the  San  Juan  district  court  acting  as  a  court  of 
second  instance,  which  shall  hear  and  decide  them  in  conformity  with 
the  law  now  in  force.     Criminal  cases,  except  those  awaiting  appeal, 
shall  also  be  turned  over  to  the  San  Juan  district  court  by  the  supreme 
court. 

13.  Criminal  cases  in  process  before  the  court  of  Ponce  will  be 
turned  over  to  the  district  court  to  be  established  for  that  district. 
The  court  of  Mayaguez  will  also  turn  over  its  business  to  the  district 
court  likewise  to  be  established  there. 

14.  Business  in  progress  before  courts  of  instruction  and  1st  instance 
courts  shall  be  turned  over  with  due  formalities  to  the  district  courts 
corresponding  to  each  respective  judicial  district. 

15.  The  criminal  business  transferred  from  the  abolished  courts 
shall  be  proceeded  with  by  the  district  courts.     Matters  of  civil  liti- 
gation shall  also  follow  their  course  up  to  the  step  in  procedure  known 
as  presentation  of  proofs,  when   they  shall  be  continued  under  the 
rules  of  civil  oral  suits  established  by  this  general  order.     If  said  civil 
business  shall  have  got  so  far  as  presentation  of  proofs  without  con- 
cluding same  the  remainder  shall  be  heard  in  oral  suit,  but  if  the  suit 
be  found  in  a  stage  of  proceedings  subsequent  to  the  presentation  of 
proofs  it  shall  be  finished  and  decided  by  the  district  courts  in  con- 
formity with   existing  proceedings   after  public   hearing,   it  being 
understood  that  recourse  of  cassation  against  the  decision  shall  only 
be  allowed  within  the  dispositions  of  this  general  order. 

JUDICIAL    RESPONSIBILITY. 

16.  The  administration  of  justice  shall  be  carried  on  with  entire 
independence  and  without  any  other  limitation  than  the  civil  or  criin- 


LAW    OF    CIVIL   PROCEDURE.  493 

inal  responsibility  which  judges  or  courts  may  incur  by  reason  of 
their  actions,  for  which  they  will  be  answerable  as  provided  in  General 
Orders,  No.  98,  current  series,  these  headquarters. 

17.  The  investigation  of  charges  in  the  cases  treating  of  judicial 
responsibility  may  be  given  in  charge  of  judicial  functionary  of  cate- 
gory superior  to  the  accused,  but  only  the  supreme  court  in  bane  shall 
authorize  the  presentation  of  the  charge. 

18.  Civil  responsibility  of  judges,  judicial  functionaries,  and  attor- 
neys shall  be  incurred  for  the  following  reasons:  Manifest  infraction 
of  the  law,  corrupt  misstatement  of  facts,  and  negligence  or  want  of 
diligence  in  complying  with  judicial  duties  and  functions. 

19.  Civil  responsibility  may  be  demanded  before  the  supreme  court 
and  under  the  rule  established  for  civil  oral  suits  before  the  district 
courts  by  the  parties  prejudiced. 

20.  No  appeal  lies  against  decisions  of  the  supreme  court. 

21.  Civil  or  criminal  responsibility  incurred  by  minor  functionaries 
of  the  administration  of  justice  shall  be  exacted  before  the  district  or 
municipal  court  corresponding  and  in  the  usual  form  established  by 
ruling  dispositions. 

22.  It  shall  not  be  necessary  to  give  bond  or  establish  a  preliminary 
suit  in  order  to  lodge  accusation  or  complaint  against  judicial  function- 
aries or  attorneys. 

23.  When  the  members  of  the  supreme  court  incur  responsibility 
they  shall  be  tried  by  a  special  tribunal,  as  established  in  paragraph 
13  of  General  Orders,  No.  98,  current  series,  these  headquarters. 

MUNICIPAL   COURTS. 

24.  There  shall  be  a  municipal  court  in  each  municipal  district. 
Each  municipal  court  shall  consist  of  one  judge  and  two  associate 
judges,  who  shall  jointly  decide  and  sign  all  the  cases  that  have  been 
properly  brought  before  the  court  and  determined  by  the  same. 

25.  In  criminal  matters  municipal  judges  shall  have  cognizance  in 
all  misdemeanors  established  by  the  ruling  Penal  Code,  as  well  as  petty 
thefts,  frauds,  and  offences  against  property  in  cases  where  the  amount 
of  the  object  of  the  offence  or  damage  occasioned  does  not  exceed 
five  dollars,  U.  S.  currency,  which  offences  shall  be  considered  mis- 
demeanors, with  the  exception  of  those  comprised  in  article  538  of  the 
Penal  Code,  which  shall  be  judged  by  the  corresponding  district  court. 
They  shall  also  have  cognizance   in   assaults  where   the  healing  of 
wounds  caused  shall  have  been  completed  in  not  more  than  fifteen 
days.     In  all  these  cases  they  shall  apply  the  respective  punishments 
stated  by  the  code. 

26.  In  civil  matters  municipal  judges  shall  have  cognizance  of  all 
litigation  where  the  amount  at  stake  between  litigants  does  not  exceed 
four  hundred  dollars,  U.  S.  currency. 


494  LAW    OF    CIVIL    PROCEDURE. 

27.  It  shall  also  be  the  duty  of  municipal  judges  to  prepare  the  pre- 
liminaries in  criminal  cases  within  the  limits  of  investigation,  substan- 
tial proof   of   punishable  acts,  their  nature,  gravity,  and  essential 
circumstances,  search  for  the  author  or  authors,  their  detention  or 
imprisonment  in  accordance  with  the  law,  and  the  seizure  of  the  instru- 
ments of  the  crime  or  objects  which  might  convict,  in  cases  where  such 
exist.     These  preliminaries  must  be  practiced  by  municipal  judges 
within  the  period  of  six  days  after  they  receive  the  information  that 
a  crime  has  been  committed. 

28.  The  police  force,  as  a  whole  and  individually,  is  also  obliged  to 
attend  to  the  preliminary  investigation  of  all  crimes  until  the  appear- 
ance of  the  municipal  judge,  to  whom  they  will  give  notice  imme- 
diately. 

29.  As  soon  as  municipal  judges  have  completed  the  preliminary 
investigations  in  criminal  cases  within  the  period  previously  fixed 
they  shall  send  them  by  a  police  officer  without  delay  to  the  attorney 
of  the  respective  district  court,  together  with  the  prisoners  as  supposed 
authors  of  the  crime,  if  any  has  been  made. 

30.  The  designation  of  the  associates  shall  be  made  by  lot,  in  the  fol- 
lowing manner:    Each  municipal  judge  shall  request  the  respective 
alcalde  to  furnish  him  with  a  list  of  competent  persons  or  residents 
with  academic  or  professional  diplomas,  and  of  such  persons  as  have 
held  the  position  of  alcalde,  councillor,  or  municipal  judge,  and  another 
list  of  an  equal  number  of  municipal  taxpayers,  in  the  order  of  the 
amount  paid,  beginning  with  the  largest  amount.     These  lists,  which 
shall  be  rectified  or  added  to  each  year,  shall  include  only  persons  of 
more  than  21  years  of  age  who  know  how  to  read  and  write. 

31.  On  the  first  day  of  each  quarter,  or  every  three  months,  the 
municipal  judge  shall  call  a  meeting  of  the  persons  inscribed  in  the 
two  lists,  and  publicly  and  in  the  presence  of  those  attending  will 
draw  by  lot  one  from  each  list,  so  as  to  form  pairs,  until  both  lists  are 
exhausted.     This  will  cause  each  pair  to  be  formed  of  one  competent 
person  and  one  taxpayer.     On  the  conclusion  of  the  drawing  a  list 
shall  be  prepared  of  the  associates  who  have  so  served  during  the 
quarter,  which  shall  be  posted  in  the  court  room,  duly  signed  by  the 
judge,  secretary,  and  others  present. 

32.  The  associates,  in  the  order  of  their  respective  terms  and  with- 
out prejudice  to  the  particular  obligation  of  each  when  his  proper  turn 
arrives,  shall  act  as  substitutes  one  for  the  other. 

33.  The  municipal  judge  shall  advise  the  associates  when  their  turn 
arrives,  stating  the  day  and  hour  a  sufficient  time  beforehand.     With 
this  object  municipal  judges  shall  name  one,  two,  or  more  days,  if  nec- 
essary, in  each  week  for  the  prompt  and  orderly  decision  of  business 
in  hand. 

34.  Municipal  judges  shall  receive  under  oath,  subject  to  the  penal- 


LAW    OF    CIVIL    PEOCEDUEE.  495 

ties  of  perjury,  statements  from  the  associate  judges  that  no  motive 
or  just  and  legal  impediment  preventing  them  from  sitting  on  the 
case  connects  them  with  the  litigants. 

35.  The  associate  judges  whose  turn  it  is  may  have  cognizance  of 
all  suits  awaiting  decision  on  the  day  corresponding  to  such  turn, 
which  suits  shall  not  be  passed  on  for  the    cognizance  of   other 
associates. 

In  the  act  of  the  trial  shall  be  stated  the  decision,  which  shall  con- 
tain the  result  of  the  voting  and  the  resolution  of  the  pending  cases, 
without  the  form  known  as  "resultando  y  considerando." 

36.  Against  the  decision  of  municipal  and   associate  judges  free 
appeal  will  lie  to  the  respective  district  court.     Recourse  of  appeal 
must  be  had  within  five  days,  counting  from  the  day  following  the 
notification  of  sentence. 

37.  An  apperance  must  be  put  in  before  the  district  court  within 
a  period  of  ten  days  after  notice  being  served. 

38.  Both  parties  having  put  in  an  appearance,  the  district  court 
shall  set  a  day  and  hour  for  the  public  hearing,  at  which  either  the 
litigants,  their  legal  representative,  or  their  lawyers  may  appear. 

39.  No  appeal  of  any  sort  shall  lie  against  the  decisions  of  the  district 
courts  in  civil  or  criminal  verbal  suits. 

40.  As  a  recompense  for  the  increased  work  which  the  foregoing 
imposes  on  the  municipal  courts,  an  amount  shall  be  appropriated  in 
the  insular  budget  for  the  benefit  of  the  secretaries  of  said  courts,  both 
for  personal  services  and  materials.     For  this  purpose  different  cate- 
gories shall  be  formed,  taking  into  consideration  the  greater  amount 
of  work  which  may  fall  to  the  share  of  the  courts  in  municipalities 
containing  the  most  inhabitants. 

CRIMINAL   PROCEDURE. 

41.  The  attorney  of  the  district  court,  on  receiving  the  summary  sent 
by  the  municipal  judge,  shall  issue  an  order  for  the  detention  of  the 
prisoners,  if  any,  in  the  corresponding  prison,  and  within  the  precise 
period  of  ten  days  shall  draw  up  a  bill  of  charges  or  present  a  petition 
for  quashing.     In   cases   of   wounding  the   recovery  of  the  person 
wounded  shall  be  awaited,  which  recovery  shall  be  certified  to  by  the 
physician  in  attendance,  under  his  exclusive  responsibility  and  without 
need  of  ratification. 

42.  On  presentation  of  the  bill  of  charges  by  the  prosecuting  attor- 
ney the  court  will  inform  the  accused  thereof,  so  that  he  can  state 
whether  or  not  he  agrees  to  the  penalty  requested,  and  if  not  he  shall 
be  required  immediately  to  name  his  lawyer  for  the  defence.     If  the 
lawyer  named  refuses  to  defend,  the  first  lawyer  on  the  list  will  be 
appointed,  and  the  accused  will  be  informed  thereof  to  enable  him  to 
give  instructions  accordingly. 


496  LAW    OF    CIVIL    PROCEDURE. 

43.  As  soon  as  the  defence  files  a  bill  of  conclusions  in  writing  within 
five  days  the  court  will  decide  upon  the  admission  of  the  testimony 
proposed,  and  shall  immediately  set  a  day  and  hour  for  the  hearing  of 
the  oral  trial. 

44.  In  the  record  of  the  oral  trial  the  petitions  of  the  prosecuting 
attorney  and  lawyer  for  the  defence  regarding  the  points  which  they 
may  consider  essential  to  assuring  the  exactitude  of  the  evidence  of 
witnesses  of  experts  shall  be  succintly  stated.     The  question  in  exam- 
ination or  cross-examination  ruled  out  by  the  court  shall  also  be 
recorded. 

45.  In  cases  provided  for  by  the  Law  of  Criminal  Procedure  appeal 
in  cassation  will  lie  against  sentences  pronounced  by  the  district  courts 
for  infraction  of  law  or  error  in  procedure. 

46.  Against  writs  or  ordinances  of  the  district  courts  which  are  not 
of  mere  procedure  appeal  always  lies  to  the  same  court  for  reconsid- 
eration or  amendment. 

CIVIL   PROCEDURE. 

47.  All  civil  litigations  between  parties  when  the  amount  exceeds 
$400  U.  S.  currency  shall  be  originally  heard  and  decided  before  the 
respective  district  court  in  the  form  established  by  the  following 
articles. 

48.  The  litigants  must  be  advised  by  lawyers  registered  at  the  bar 
of  this  island,  and  may  appear  personalty  or  by  procurator,  as  they 
choose. 

49.  The  claim  must  be  lodged  with  the  district  court,  which  shall 
first  decide  whether  to  admit  it,  and  it  shall  immediately  name,  in 
order  of  precedence,  a  judge  or  member  of  the  court  who  shall  conduct 
the  preliminaries  of  the  suit  up  to  the  oral  hearing.      Said  judge  will 
make  all  the  orders  of  mere  procedure,  and  the  district  court  the 
writs  and  resolutions  not  of  that  character. 

50.  On  the  admittal  of  the  claim,  it  shall  be  handed  to  the  defendant 
in  the  suit  for  him  to  reply  within  a  period  of  twenty  days,  which  can  not 
be  extended,  and  within  which  time  he  must  also  put  in  an  appearance 
in  the  suit.     Pleas  of  counterclaim  will  be  allowed,  and  in  such  the 
demandant  will  have  three  days  to  answer  the  counterclaim. 

51.  On  reply  being  made  to  the  claim  and  the  plaintiff  being  fur- 
nished with  a  copy  of  such  reply,  or  on  the  defendant  being  accused 
and  declared  in  default,  the  preliminary  judge  shall  cite  the  litigants 
for  a  verbal  hearing,  setting  a  day  and  hour  therefor  with  notice  of 
not  less  than  fifteen  nor  more  than  twenty  days. 

52.  Both  litigants  or  their  legal  representatives,  accompanied  by 
their  respective  lawyers,  shall  appear  at  this  hearing  and  shall  present 
in  writing  a  notice  of  the  testimony  of  every  description  which  each 


LAW    OF    CIVIL    PKOCEDUKE.  497 

intends  to  call  for.  At  this  meeting  the  lawyers  on  both  sides  may 
amplify  or  add  to  the  documents  they  had  drawn  up. 

53.  The  preliminary  judge  shall  confine  himself  to  hearing  the  peti- 
tion of  the  litigants,  noting  down  briefly  and  succinctly  the  arguments 
presented  by  each  one,  and  after  ordering  that  the  documents  pre- 
sented form  part  of  the  records  shall  declare  the  hearing  terminated 
and  shall  reduce  to  writing  the  minutes  thereof,  giving  notice  to  the 
court,  at  its  first  session,  of  the  notices  of  testimony  presented,  for 
the  court  to  resolve  therein  as  is  proper. 

54:.  If  neither  of  the  litigants  have  asked  for  hearing  of  testimony 
in  their  documents  of  claim  and  reply,  the  court  shall  immediately  set 
a  day  and  hour  for  a  public  hearing,  at  which  the  lawyers  for  the  com- 
plainant and  defence  shall  state  their  client's  case. 

55.  The  district  court  shall  examine  the  testimony  proposed  to  be 
submitted,  admitting  that  which  they  consider  pertinent,  and  at  once 
setting  a  day  and  hour  for  the  hearing  of  the  civil  oral  suit. 

56.  If  testimony  is  to  be  taken  outside  of  the  territory  of  this  island, 
the  necessary  rogatory  letters  trial  shall  be  granted  in  the  proper  form 
and  through  the  proper  channel,  and  the  hearing  of  the  suit  shall  be 
put  off  until  the  extraordinary  stay  be  terminated  or  the  testimony 
taken  by  commission  be  returned.     For  the  comparison  of  public 
documents  with  their  originals,  the  court  when  deciding  on  the  admis- 
sion of  testimony  shall  issue  letters  mandatory  containing  the  necessary 
clauses  conferring  sufficient  power  on  municipal  judges  of  the  districts 
where  the  comparison  is  to  be  made.     Should  the  comparison  have  to 
be  made  outside  of  his  jurisdiction,  he  will  grant  the  required  letters 
of  rogation. 

57.  On  the  day  of  the  hearing  the  testimony  proposed  shall   be 
examined  before  the  court,  and  with  the  intervention  of  the  lawyers 
of  both  parties,  who  shall  examine  the  witnesses  or  experts  in  turn  by 
questions,  cross-examination,  or  declarations  which  they  consider  nec- 
essary for  their  case  within  the  matter  under  discussion  and  that  pro- 

in  the  document  of  testimony.  The  court  may  throw  out  any 
suggestive,  captious,  or  impertinent  question  or  cross-question.  Each 
witness  or  expert  shall  be  examined  first  by  the  lawyer  for  the  case 
presenting  him,  afterwards  by  the  lawyer  for  the  other  side,  if  he 
wishes,  and  lastly  by  the  court,  if  wishing  to  make  clear  or  ask  for 
explanation  of  any  points  it  thinks  fit. 

58.  The  secretary  of  the  court  shall  draw  up  the  minutes  of  the 
suit,  recording  substantially  the  result  of  evidence  and  the  cross-exam- 
ining of  the  lawyers. 

59.  On  the  termination  of  testimony  offered  the  lawyers  of  both 
parties  may  comment  on  the  question  under  discussion  and  the  rights 
of  their  clients.     They  are  allowed  one  opportunity  to  rectify  the  alle- 
gations adduced  in  their  pleas.     The  suit  shall  then  be  declared  closed, 

5190 32 


posed 

snororo 


498  LAW    OF    CIVIL    PROCEDURE. 

and  decision  must  be  given  within  not  more  than  ten  days,  counting 
from  the  day  following  the  termination  of  the  suit.  Said  sentence 
must  be  drawn  up  and  written  in  the  form  established  by  the  Law  of 
Civil  Procedure  when  referring  to  major  suits. 

60.  The  appearance  of  witnesses  and  experts  shall  be  compulsory 
except  when,  in  the  opinion  of  the  court,  they  can  allege  and  prove 
just  cause.     Any  witness  or  expert  not  appearing,  without  just  cause, 
shall  be  fined  not  exceeding  $50,  at  the  discretion  of  the  court. 

61.  Each  expert  or  witness  should  be  indemnified  by  the  party  he 
appears  for;  and  for  this  purpose,  on  the  termination  of  each  suit,  the 
court  will  fix  the  amount  of  indemnity  and  will  immediately  inform 
each  of  the  litigants  or  their  legal  representatives  the  amounts  they 
are  called  on  to  pay  to  each  witness,  except  when  litigating  as  paupers. 
In  this  case  indemnities  shall  be  paid  in  the  same  manner  as  those  paid 
to  witnesses  or  experts  in  criminal  cases. 

62.  Should  the  defendant  present  a  dilatory  plea  in  abatement,  evi- 
dence shall  be  taken  thereon,  and  at  the  conclusion  of  the  evidence  the 
lawyers  on  both  sides  shall  present  their  argument  verbally,  the  main 
suit  being  meanwhile  suspended  for  the  time  purely  necessary  for  the 
court  to  give  a  succinct  decision  in  the  incidental  matter.     If  the  plea 
is  sustained,  it  shall  of  course  have  effect  as  against  the  claim;  if  over- 
ruled, the  original  suit  shall  continue  its  course. 

63.  Costs  shall  always  be  paid  by  the  litigant  who  loses  his  case  on 
all  points.     In  other  cases  the  court  shall  give  an  equitable  decision  in 
the  matter  of  costs. 

64.  By  costs  are  understood:  Lawyer's  fees,  procurator's  fees,  indem- 
nities for  witnesses  and  experts,  and  the  legal  expenses  necessarily 
incurred  as  a  direct  consequence  of  litigation. 

GENERAL   PROVISIONS. 

65.  Both  in  civil  and  in  criminal  matters  judges  shall  discuss  their 
decisions  privately,  but  the  voting  thereon  must  be  held  at  a  public 
hearing  and  in  the  presence  of  the  litigants  or  their  legal  representa- 
tives.    The  presiding  judge  shall  put  the  question  or  questions  on 
which  a  case  turns  separately  to  the  vote,  and  shall  endeavor  to  separate 
duly  the  different  points  debated.     Each  of  the  judges  shall  reply 
simply  yes  or  no,  and  the  decision  shall  be  immediately  recorded 
according  to  majority  of  votes.     In  civil  matters  the  decision  shall  be 
reduced  to  form  by  the  judge  who  conducted  the  preliminaries,  unless 
he  dissent  from  the  decision.     In  criminal  matters  it  shall  be  done  by 
the  judges  by  turns. 

The  dissenting  judge  shall  write  his  opinion  at  the  foot  of  the 
decision. 


LAW    OF    CIVIL    PROCEDURE.  499 

ADDITIONAL    CIVIL    PROVISIONS. 

66.  All  the  attributes  conceded  to  judges  of  first  instance  under  the 
Law  of  Civil  Procedure  in  proceedings  relating  to  meetings  of  credi- 
tors, bankruptcy,  intestacy,  probate,  and   other  matter  relative  to 
declaration  suits  and  suits  in  liquidated  claims  shall  remain  in  force 
and  shall  be  exercised  by  the  district  courts;  nevertheless,  should  the 
case  arise  that  in  any  of  these  proceedings  contest  occurs  within  the 
limits  of  the  law,  the  district  court  shall  hear  the  claim  and  rebuttal 
and  the  evidence  in  the  manner  previously  established,  and  shall  pro- 
ceed to  decide  thereon  in  civil  oral  suit. 

67.  The  attributes  in  favor  of  judges  of  first  instance  mentioned  in 
the  Law  of  Civil  Procedure  and  the  provisions  relating  to  precautionary 
attachments,  the  giving  security  for  property  in  litigation,  the  exe- 
cution of  judgments,  voluntary  jurisdiction,  and  other  dispositions 
relating  to  judicial  questions  of  a  general  character  shall  also  remain 
in  force  and  be  transferred  to  the  district  courts. 

68.  In  all  such  cases,  the  judges  of  the  district  court,  by  turns,  shall 
conduct  the  preliminary  proceedings,  but  the  court  itself  shall  issue 
such  writs  and  orders  as  are  not  merely  of  procedure. 

69.  In  suits  of  liquidated  claims  the  district  courts  preserve  the 
attributes  enjoyed  by  judges  of  first  instance,  following  the  Law  of 
Civil  Procedure  up  to  such  step  as  the  reply  to  the  claim  or  failure  to 
reply  thereto,  in  which  case  the  preliminary  judge  will  cite  the  litigant 
to  appear  and  submit  the  proposal  of  evidence  to  be  offered,  after  which 
the  suit  shall  continue  under  the  rules  established  for  civil  oral  suits  in 
general. 

70.  The  provisions  of  the  Law  of  Civil  Procedure  relative  to  the  form 
of  presenting  claims  and  replies,  proposal  of  proofs  and  legal  formulas 
in  general  shall  continue  to  exist  and  be  applied.     Documentary  proofs 
may  be  presented  optionally  together  with  the  claim  or  reply,  or  at 
the  hearing  held  for  the   proposal  of  proofs.     The  attendance  and 
advice  of  a  lawyer  for  each  litigant  is  obligatory  in  civil  oral  suits  and 
other  cases  established  by  said  law  of  procedure. 

71.  The  system  of  procedure  established  by  the  law  of  hypothecation 
and  other  special  laws  shall  remain  in  force,  it  being  understood  that 
the  district  courts  assume  the  jurisdiction  and  faculties  of  the  abolished 
supreme  court,  territorial  audiencias,  and  courts  of  first  instance,  all 
cases  in  which  judicial  contest  arises  being  settled  in  single  instance 
and  by  civil  oral  suit. 

72.  All  steps,  exceptions,  and  proofs  in  the  various  classes  of  suits 
hall  be  such  as  required  by  the  Law  of  Civil  Procedure  and  according 

whether  the  suit  be  declarative,  liquidated  claim,  injunction,  evic- 
ion,  or  of  other  character.     Dilatory  exceptions,  when  authorized  by 
the  law,  shall  be  presented  conjointly  with  peremptory  exceptions,  and 


500  LAW    OF    CIVIL    PROCEDURE. 

in  corresponding  order,  according  to  their  respective  nature.  In  the 
same  form  and  in  one  written  document,  proposal  of  proofs  relative  to 
both  classes  of  exception  must  be  made. 

73.  Petitions  for  annulment  must  be  pleaded  during  the  oral  hearing, 
and  the  court  will  previously  decide  in  the  form  established  for  dila- 
tory exceptions  whether  they  affect  the  essential  validity  of  the  suit. 
The  lawyers  for  both  sides  may  enter  the  protest  they  think  fit,  for 
the  purpose  of  appeal  against  error  in  procedure,  which  protests  shall 
be  recorded  in  the  minutes. 

GENERAL   CIVIL   AND   CRIMINAL   PROVISIONS. 

74.  All  provisions  of  the  laws  of  civil  and  criminal  procedure  refer- 
ring concretely  and  specially  to  forms  or  manner  of  procedure  different 
or  contrary  to  the  prescriptions  of  this  order  are  abrogated. 

75.  Verbal  suits  and  proceedings  before  municipal  courts,  both  in 
civil  and  criminal  matters,  shall  retain  the  same  form  as  the  present  law 
orders. 

76.  The  judicial  board  created  by  General  Orders,  No.  98,  c.  s.,  Head- 
quarters Department  of  Porto  Rico,  will  proceed  as  soon  as  possible  to 
codify  such  dispositions  governing  civil  and  criminal  procedure  as 
remain  in  force.     These  shall  be  divided  into  two  volumes,  civil  and 
criminal,    respectively,    and   shall   be  published  in   the   accustomed 
manner  for  the  information  of  all  concerned. 

77.  All  disputes  or  differences  between  judicial  and  gubernatorial 
authorities  shall  be  decided  by  the  commander  in  chief  of  the  depart- 
ment after  hearing  the  opinion  of  the  supreme  court  and  its  attorney. 

APPEALS  TO  THE  SUPREME  COURT. 

78.  Appeal  to  the  supreme  court  will  lie  in  all  civil  suits  for  infrac- 
tion of  law  and  error  in  procedure  in  the  cases  which  the  law  of 
civil  procedure  defines  for  the  latter,  but  not  for  suits  heard  before 
municipal  courts. 

79.  Besides  the  cases  defined  by  the  Law  of  Civil  Procedure,  such 
appeal  will  also  lie  for  error  in  the  consideration  of  proofs. 

80.  In  criminal  trials,  appeal  may  be  taken  for  infraction  of  law  and 
error  in  procedure  in  cases  defined  by  the  Law  of  Criminal  Procedure. 

81.  Notice  of  appeal  shall  be  given  to  the  sentencing  district  court 
not  later  than  ten  days  after  the  day  of  notification  of  sentence. 

82.  The  district  court  shall  decide  whether  to  allow  the  appeal  only 
when  such  is  to  be  taken  for  error  in  procedure,  and  its  decision 
adverse  may  be  appealed  against  before  the  supreme  court  within 
fifteen  days.     For  this  purpose  the  district  court  when  denying  right 
of  appeal  shall  grant  a  literal  and  certified  copy  of  the  ruling  against 
which  appeal  was  sought  to  the  party  appealing  within  three  days  at 


LAW    OF    CIVIL    PROCEDURE.  501 

the  latest,  and  besides  shall  order  both  sides  to  appear  before  the 
supreme  court.  * 

83.  On  the  termination  of  the  time  allowed  for  appearance  and  on 
the  appearance  of  the  applicant,  the  supreme  court  after  public  hear- 
ing shall  immediately  give  a  decision  on  the  appeal  against  the  ruling 
of  the  lower  court  debarring  right  of  cassation.     The  lawyers  for  both 
sides  may  be  present,  and  the  matter  must  be  decided  before  all  other 
business  in  hand. 

84.  Should  the  district  court  allow  appeal  the  original  documents 
must  be  sent  to  the  supreme  court  after  citing  the  parties  to  appear 
during  a  period  of  ten  days. 

It  shall  not  be  necessary  to  give  any  bond  on  appeal  to  the  supreme 
court. 

85.  On  the  appearance  of  the  appellant  before  the  supreme  court  of 
cassation  the  documents  shall  be  given  him  to  enable  him  to  base 
and  establish  his  appeal  in  writing  within  twenty  days.     His  appeal 
in  writing  shall  be  handed  to  the  other  litigant  for  twenty  days  also, 
and  on  the  return  to  the  court  of  all  the  documents  it  shall  set  a  day 
and  hour  for  a  public  hearing  at  which  the  prosecuting  attorney  and 
the  lawyers  on  both  sides  shall  state  their  cases  according  to  whether 
the  matter  be  a  civil  or  criminal  suit. 

86.  The  supreme  court  shall  give  its  verdict  by  vote  in  public  in 
the  form  previously  established  in  this  order  for  district  and  municipal 
courts  and  within  five  days   of   the   public  hearing.     After  giving 
decision,  the  original  documents  shall  be  returned  to  the  proper  court 
with  a  certified  copy  of  such  a  decision.     All  sentences  of  the  supreme 
court  of  justice  shall  be  published  in  the  official  gazette. 

87.  All  provisions  of  the  laws  of  civil  and  criminal  procedure  rela- 
tive to  the  substantiation  of  appeals  which  are  in  opposition  to  the 
provisions  of  this  order  are  repealed. 


COMPLEMENTARY   PROVISIONS. 


>.  The  positions  of  judge  or  prosecuting  attorney  of  the  supreme 
court  of  justice  and  district  court  shall  be  filled  by  lawyers  only. 

89.  Besides  the  legal  diploma  the  nomination  of  judicial  function- 
aries shall  be  made  after  taking  into  account  services  rendered,  sen- 
iority at  the  bar,  and  known  ability  in  the  profession. 

90.  The  secretaries  of  the  supreme  court  of  justice  and  district 
courts  must  also  be  lawyers.     Taking  into  account  the  employees  of 
the  courts  of  first  instance  who  by  virtue  of  this  order  will  lose  their 
positions,  it  is  hereby  ordered  that  such  "escribanos"  as  possess  the 
necessary  conditions  as  to  capability,  honesty,  and  good  service  in 
their  last  position  will  be  given  preference  in  selecting  secretaries  of 
the  district  courts. 


502  LAW    OF    CIVIL   PEOCEDUEE. 

91.  Municipal  judges  must  also  be  lawyers  registered  at  the  bar  of 
this  island,  but  when  such  are  not  available  in  the  respective  munici- 
palities, persons  possessing  the  best  conditions  of  fitness  and  capacity 
for  judicial  functions  may  be  nominated.     Lawyers  holding  the  office 
of  municipal  judge  are  not  permitted  to  practice  law. 

92.  The  nomination  of  municipal  judges  and  attorneys  shall  be  made 
in  the  manner  established  for  the  rest  of  the  personnel  of  the  adminis- 
tion  of  justice,  until  such  time  as  they  may  be  chosen  by  suffrage. 

93.  Secretaries  of  the  municipal  courts  shall  be  nominated  in  the 
manner  established  by  the  preceding  paragraph. 

94.  The  court  shall  nominate  one  or  more  supplementary  judges  to 
substitute  the  incumbent  in  case  of  vacancy,  absence,  or  sickness. 
Each  attorney  shall  also  nominate  his  substitute  for  the  same  reason. 

These  nominations  must  be  made  from  among  lawyers  registered  at 
the  bar  of  this  island  who  are  practising  in  the  town  where  the  court 
sits.  Substitute  judges  shall  receive  six  dollars  for  each  day's  service 
in  the  district  courts  and  ten  dollars  if  serving  in  the  supreme  court  of 
justice. 

95.  Judges  of  the  courts  and  attorneys  do  not  require  any  permis- 
sion for  absenting  themselves,  but  shall  receive  no  salary  during  their 
absence  and  must  see  to  it  that  a  substitute  fill  their  places. 

96.  Notice  and  proof  to  the  entire  satisfaction  of  the  court  of  which 
he  forms  part  must  be  given  by  a  judge  or  attorney  when  sick,  during 
which  period  only  one-half  of  the  salary  shall  be  allowed. 

97.  The  presiding  judge  of  each  court  shall  give  notice,  under  his 
responsibility,  to  the  solicitor-general  of  the  absence  of  any  of  its  mem- 
bers through  sickness  or  other  causes. 

98.  Should  the  sickness  last  more  than  three  months,  the  court  of 
which  the  sick  judge  forms  part  shall  so  inform  the  solicitor-general 
to  enable  him  to  take  the  necessary  action.     The  above  provisions  are 
applicable  to  court  secretaries,  court  clerks,  and  other  employees  of 
the  administration  of  justice. 

99.  The  court  shall  also  inform  the  attorney -general  of  all  vacan- 
cies, absences,  and  substitutions,  for  purposes  of  keeping  the  proper 
accounts. 

By  command  of  Brigadier-General  Davis  : 

W.  P.  HALL, 

Adjutant-  General. 

GENERAL  ORDERS,  )  HEADQUARTERS  DEPARTMENT 

OF  PORTO  Rico, 

No.  173.  )  San  Juan,  October  28,  1899. 

I.  Subpoenas  for  witnesses,  letters  rogatory,  and  all  other  legal  docu- 
ments and  instruments  which  issue  from  the  courts  of  this  island 
addressed  to  courts  or  officials  of  foreign  countries  must  in  every  case 


LAW    OF    CIVIL    PROCEDURE.  503 

be  accompanied  by  the  necessary  fees  to  cover  all  costs  for  the  execu- 
tion and  return  of  such  papers.  Such  fees  should  be  transmitted  in 
foreign  exchange,  either  by  bill  on  London  or  on  some  accredited 
banking  house  of  the  country  to  which  the  document  is  to  be  sent. 

II.  All  papers  of  the  character  herein  referred  to  will  be  trans- 
mitted to  these  headquarters  through  the  solicitor-general,  who  will 
see  that  the  proper  fees  are  enclosed  before  forwarding  them. 

By  command  of  Brigadier-General  Davis: 

W.  P.  HALL, 

Adjutant-  General. 

GENERAL  ORDERS,  )  HEADQUARTERS  DEPARTMENT 

OF  PORTO  Rico, 

No.  182.  San  Juan,  November  18, 1899. 

Upon  the  recommendation  of  the  judicial  board,  paragraph  82,  Gen- 
eral Orders,  No.  118,  current  series,  these  headquarters,  is  amended  to 
read  as  follows: 

The  district  court  shall  decide  whether  to  allow  the  appeal,  not  only 
when  such  is  to  be  made  on  account  of  an  error  in  the  procedure,  but 
also  because  of  infraction  of  law,  and  its  decision  adverse  thereto  may 
be  appealed  against  before  the  supreme  court  within  fifteen  days. 
For  this  purpose  the  district  court,  when  denying  the  right  of  appeal, 
shall  grant  a  literal  and  certified  copy  of  the  ruling  against  which 
appeal  was  made  to  the  party  appealing  within  three  days  at  the  latest, 
and  besides  shall  order  both  parties  to  appear  before  the  supreme 
court. 

By  command  of  Brigadier-General  Davis: 

W.  P.  HALL, 

Adjutant-  General. 

GENERAL  ORDERS,  )  HEADQUARTERS  DEPARTMENT 

OF  PORTO  Rico, 

No.  186.  )  San  Juan,  November  %l,  1899. 

Whenever  it  may  come  to  the  knowledge  of  any  court  in  this 
department  before  which  is  pending  any  civil  cause  that  by  the  rules 
and  practice  of  such  court  there  must  be  made  a  publication  in  some 
newspaper  of  some  order,  rule,  notice,  or  other  proceeding,  such  court, 
or  any  judge  thereof,  shall  have  the  power  to  designate  the  newspaper 
in  which  such  publication  shall  be  made,  and  shall  also  fix  the  legal 
charges  for  the  same.  Such  publication  shall  be  in  the  language  which 
is  the  official  language  of  the  court  having  jurisdiction  of  the  cause. 
Preference  shall  be  given  to  newspapers  published  in  the  town  or  city 
wherein  one  or  more  of  the  defendants  may  reside,  if  in  this  depart- 
ment, or  in  the  town  or  city  wherein  all  or  a  part  of  the  subject- 


504  LAW    OF    CIVIL    PROCEDURE. 

matter  of  the  cause  may  be  located,  if  in  this  department,  as  the  court 
may  direct.  In  the  event  of  such  local  publication  being  deemed  by 
said  court  impracticable,  the  publication  shall  appear  in  some  news- 
paper located  in  the  city  of  San  Juan.  Nothing  in  this  order  shall  in 
any  way  affect  the  legality  of  such  publications  appearing  in  the  Offi- 
cial Gazette  or  in  any  other  newspapers  which  may  be  recognized  by 
the  Government  as  official. 

By  command  of  Brigadier-General  Davis: 

W.  P.  HALL, 

Adjutant-  General. 

GENERAL  ORDERS,  )  HEADQUARTERS  DEPARTMENT 

OF  PORTO  Rico, 

No-  194-  )  San  Jucm,  November  28,  1899. 

The  following  schedule  of  fees  to  be  charged  by  the  judges,  prose- 
cuting attorneys,  secretaries,  and  bailiffs  of  the  various  municipal 
courts  of  the  island,  and  to  be  retained  by  those  officials,  is  published 
for  the  information  and  guidance  of  all  concerned: 

CIVIL   MATTERS. 

Dollars. 

1st.  The  municipal  judges  shall  receive  for  each  order  or  writ 0. 50 

2nd.  For  each  final  sentence 1.  25 

3rd.  For  each  testimony  taken 20 

Double  fees  shall  be  paid  should  the  testimony  be  taken  through  an  in- 
terpreter or  outside  the  court-room. 
4th.  For  judgment  ordering  a  dispossession  of  property  they  shall  receive  for 

each  hour 1.  50 

5th.  For  a  meeting  held  for  the  purpose  of  constituting  a  family  council  they 

shall  charge  for  each  hour 1. 00 

6th.  For  each  appearance  in  court  of  the  parties  concerned  for  the  purpose  of 

making  petitions  admitted  by  law 25 

7th.  For  each  order,  letter  requisitorial,  requisition,  letter  rogatory,  and  in- 
formation   50 

8th.  For  each  official  communication 15 

9th.  For  each  edict 25 

10th.  For  attendance  at  auctions,  inventories,  seizure  of  property,  ocular  in- 
spections, demarcation  proceedings,  and  proceedings  for  placing  persons  in 

charge  of  others,  not  requiring  more  than  an  hour 1.  50 

And  for  each  additional  hour 1.  00 

llth.  For  the  performance  of  the  act  of  reconciliation  (amicable  settlement  of 
disputes),  including  certificate  thereof,  they  shall  receive  in  full  payment  of 

fees 1.50 

12th.  When  the  act  does  not  take  place,  owing  to  the  nonappearance  of  one  of 

the  parties  summoned,  including  the  certificate 75 

13th.  For  all  orders,  acts,  and  proceedings  connected  with  an  oral  trial,  includ- 
ing the  sentence,  except  the  proceedings  of  provisional  or  cautionary  attach- 
ments, they  shall  charge,  if  the  amount  involved  does  not  exceed  one  hundred 

dollars 1.00 

From  one  hundred  to  two  hundred,  twice,  from  two  hundred  to  three 
hundred,  three  times,  and  from  three  hundred  to  four  hundred,  four  times 
that  amount. 


: 


LAW    OF    CIVIL    PROCEDURE.  505 

Dollars. 

14th.  When,  after  the  defendant  has  been  summoned,  the  trial  does  not  take 
place,  owing  to  the  nonappearance  of  the  parties  concerned 0.  75 

15th.  Prosecuting  attorneys  shall  charge  for  each  written  statement  of  their 
opinion  regarding  a  civil  case  in  which  they  have  to  intervene 1. 00 

16th.  In  all  other  acts  and  proceedings,  where  they  have  to  assist,  together  with 
the  judges,  they  shall  charge  one-fourth  less  than  the  fees  assigned  to 
the  latter. 

17th.  The  secretaries  of  the  municipal  courts  shall  receive  for  each  order  or 

writ 30 

18th.  For  each  sentence 1.  00 

19th.  For  each  notification,  summons,  requisition,  or  citation  for  a  later  date, 
executed  in  the  court  room  or  in  the  place  destined  for  that  purpose,  includ- 
ing a  copy  of  the  decision .40 

20th.  For  each  of  said  proceedings  or  formalities,  when  taking  place  outside 
the  places  mentioned 60 

21st.  Should  same  be  effected  by  means  of  decrees,  owing  to  the  absence  from 

his  domicile  of  the  party  concerned,  including  said  decree 70 

22nd.  If  the  notified  person  shall  refuse  to  sign,  and  it  shall  be  necessary  that 
same  be  done  by  two  witnesses 80 

23rd.  For  drawing  up  the  reply,  when  same  must  be  admitted,  they  shall 

charge  in  addition 20 

24th.  For  each  notification  made  in  the  court  rooms 25 

25th.  For  each  annotation  made  in  contracts  with  tenants,  or  in  other  docu- 
ments, which  give  evidence  of  possession,  attachments,  appointments  of 
judicial  administrators,  their  removal,  or  any  other  circumstance  or  act 
taking  place  by  virtue  of  the  order  of  the  judge .25 

26th.  For  the  act  of  taking  off  annotations  or  comments  on  documents,  pro- 
ceedings to  show  that  same  has  been  done,  and  the  annotation  which  must 
remain  in  the  record  of  proceedings 50 

27th.  For  drawing  up  documents  relating  to  deposits  of  money,  jewels,  or 
valuables,  and  of  receipt  therefor,  when  said  deposit  be  made  in  the  court 
room 1.00 

28th.  For  proceedings  connected  with  the  delivery  of  the  money  or  objects  so 
deposited,  either  to  the  parties  concerned  or  in  public  establishments 1.  00 

29th.  When,  pursuant  to  law,  or  by  order  of  the  judge,  they  shall  make  a  writ- 
ten statement  of  the  delivery  of  documents  to  any  person  or  public  office  ..  .50 

30th.  For  each  testimony  of  the  parties  concerned,  witnesses  and  experts,  they 

shall  charge  for  each  folio 30 

Should  the  testimony  be  taken  through  an  interpreter,  or  outside  of 
the  court  room,  double  fees  shall  be  charged. 
st.  For  each  rogatory  letter  to  any  court  of  justice,  warrant,  requisition, 

order,  certificate,  and  information 1.  00 

nd.  For  each  official  communication,  order,  or  edict 25 

33rd.  For  a  trial  of  an  eviction  case,  each  hour  consumed 1.  00 

For  meetings  held  for  the  purpose  of  constituting  a  family  council,  each  hour.     1. 00 

34th.  For  each  hour  spent  at  auctions,  in  placing  persons  in  charge  of  others, 

attachments,  ejectments 1.00 

35th.  For  drawing  up  inventories,  seizure  of  property,  giving  possession  and 
description  thereof,  denunciations,  ocular  inspections,  and  confrontations, 
each  hour  consumed 75 

36th.  For  appraisement,  distribution  of  the  respective  shares,  attestation  of 
costs,  and  liquidations  of  accounts  and  interests,  each  folio  covered  by  said 
proceedings 60 


506  LAW    OF    CIVIL   PKOCEDUEE. 

Dollars. 
37th.  For  the  examination  of  writs  and  documents  of  liquidation  referred  to  in 

the  previous  article,  each  folio  required  to  be  examined 0. 04 

38th.  For  looking  up  any  record 80 

39th.  For  the  act  of  reconciliation  (amicable  settlement  of  disputes),  including 

the  certificate  of  the  act : 1.  50 

40th.  When  said  act  is  not  carried  into  effect  through  default  of  appearance  of 

one  of  the  parties  concerned,  including  the  certificate 80 

41st.  For  all  the  proceedings  in  an  oral  trial,  including  the  sentence,  but  exclu- 
sive of  those  of  a  provisional  or  cautionary  attachment 1.  75 

For  the  increase  of  aforesaid  fees  the  same  gradation  in  the  importance 
of  the  matters  shall  be  observed  as  that  established  for  district  judges. 
42nd.  When  the  trial  does  not  take  place  the  fees  for  the  preliminary  proceed- 
ings shall  be 60 

43rd.  Bailiffs  shall  charge  for  each  summons 40 

44th.  When  the  summons  has  to  be  made  outside  the  towns  or  villages  they 
shall  charge  double  fees. 

45th.  For  each  requisition  by  virtue  of  a  judicial  order 40 

46th.  For  looking  up  witnesses  when  the  party  concerned  refuses  to  sign 15 

47th.  For  each  document  to  be  served  by  them 25 

48th.  For  assistance  at  each  judicial  act 50 

49th.  For  assistance  at  each  judicial  act  outside  the  court  room,  each  hour  con- 
sumed   70 

CRIMINAL   MATTERS. 

50th.  For  each  trial  of  minor  offences  the  judges  shall  charge,  judgment 

included,  per  hour 2.  00 

51st.  The  secretary  shall  charge  for  the  same 1. 50 

52nd.  The  prosecuting  attorney  shall  charge  for  the  same 1. 00 

53rd.  The  bailiff,  for  ditto 80 

54th.  In  the  execution  of  judgments  the  same  fees  shall  be  charged  as  have 
been  established  for  civil  proceedings. 

GENERAL   PROVISIONS. 

1st.  The  former  schedules  for  experts,  interpreters,  appraisers  of  costs,  etc.,  shall 
remain  in  force. 

2nd.  The  costs  of  verbal  proceedings,  whereof  the  amount  involved  does  not  exceed 
one  hundred  dollars,  must  not  exceed  ten  per  cent,  and  in  other  trials  not  more  than 
twenty  per  cent. 

3rd.  Double  fees  shall  be  charged  for  proceedings  that  take  place  after  sunset. 

4th.  In  case  of  eviction  from  a  house,  the  rent  of  which  does  not  exceed  ten  dol- 
lars, all  the  fees,  including  those  for  ejectment,  shall  not  exceed  three  dollars. 

5th.  The  secretary  shall  issue  a  receipt  to  the  parties  concerned  for  all  the  fees  in 
each  case,  specifying  separately  the  article  of  the  schedule  under  which  each  item  is 
charged. 

6th.  The  secretaries  shall  note  at  the  foot  of  each  signature,  for  which  fees  are  paid 
according  to  the  schedule,  the  amount  received,  and  the  article  of  the  schedule 
authorizing  said  charge. 

7th.  Upon  the  termination  of  each  matter  or  case  the  secretary  shall  make  a 
specified  statement  of  all  the  costs  under  the  schedule. 

8th.  In  proceedings  taking  place  outside  court  rooms  no  fees  shall  be  charged 
other  than  those  set  down  in  the  schedule  and  50  cents  for  each  hour  of  journey. 
The  parties  concerned  shall  furnish  the  necessary  means  of  tranportation  according 
to  the  uses  and  customs  of  the  community. 


LAW    OF    CIVIL    PROCEDURE.  507 

9th.  Although  the  parties  concerned  may  have  approved  the  appraisement  of  the 
costs,  if  any  excess  in  the  charge  of  fees,  should  be  proven,  no  matter  if  it  amounts 
to  only  one  cent,  the  official  shall  return  in  full  to  the  respective  parties  twice  the 
amount  of  all  the  fees  he  may  have  charged. 

By  command  of  Brigadier-General  Davis: 

W.  P.  HALL, 

Adjutant-  General. 


GENERAL  ORDERS,  J  HEADQUARTERS  DEPARTMENT 

OF  PORTO  Rico, 

No.  47.  }  San  Juan,  March  6, 1900. 

I.  The  following-  interpretation  of  certain  articles  of  the  Treaty  of 
Paris  by  the  War  Department  is  published  for  the  information  and 
guidance  of  all  concerned: 

Articles  IX,  X  and  XI  of  the  Treaty  are  intended  to  guarantee  to  Spanish  sub- 
jects remaining  in  the  Island  (Puerto  Rico)  certain  rights  and  privileges. 

Article  IX  guarantees  Spanish  subjects  the  right  to  continue  allegiance  to  the 
Spanish  Crown  and  still  remain  in  said  territory,  retain  their  rights  of  property  and 
to  engage  in  business,  which  said  rights  are  to  be  exercised  pursuant  to  the  laws  of 
the  country  applicable  to  other  foreigners. 

*  .*#.*.**;/  -p* 

Article  XI  guarantees  to  Spanish  subjects  the  right  to  sue  and  be  sued  in  the 
courts  of  the  Country  in  like  manner  as  citizens. 

Said  stipulations  were  not  intended  to  confer  special  privileges  upon  Spanish  sub- 
jects, but  to  secure  them  certain  rights  and  privileges  enjoyed  by  other  residents  by 
prohibiting  their  denial  to  Spanish  subjects.  The  United  States  Government  agreed 
with  the  Spanish  Government  that  subjects  of  Spain  residing  in  said  territory  should 
not  be  discriminated  against  because  of  their  Spanish  citizenship.  It  was  not 
intended,  nor  required,  nor  desired  that  they  should  possess  any  special  advantages 
or  immunities  by  reason  of  their  Spanish  citizenship.  The  United  States  stipulated 
that  as  regards  property  rights  they  should  stand  on  a  footing  of  equality  with  other 
foreigners  domiciled  in  the  Island. 

The  property  rights  of  Spanish  citizens  are  subject  to  such  laws  as  are  applied  to  other 
foreigners.  (Art.  IX.) 

But  in  judicial  proceedings  the  rights  guaranteed  to  Spaniards  are  those  enjoyed 
by  the  natives.  Spanish  citizens  are  subject  in  matters  civil  and  criminal  to  the 
courts  of  the  country  and  required  to  pursue  the  same  course  as  the  citizens  of  the 
country  to  which  the  courts  belong.  By  citizens  is  meant  inhabitants  owing  alle- 
giance to  the  authority  maintaining  law  and  order. 

Spanish  subjects  are  not  exempt  from  the  laws  or  the  jurisdiction  of  the  courts  by 
reason  of  their  citizenship.  The  purpose  of  the  Treaty  is  to  make  impossible  to  refuse 
such  jurisdiction  and  thereby  secure  to  Spanish  subjects  the  right  to  appear  before 
the  courts  of  the  country,  demand  and  receive  a  hearing  on  an  equal  footing  with 
such  citizens.  Many  nations  refuse  this  privilege  to  aliens.  The  right  to  invoke  the 
powers  of  the  court  is  a  privilege  essential  to  the  protection  of  all  rights  and  the 
Spanish  Government  very  properly  desired  that  its  subjects  domiciled  in  the  territory 
surrendered  should  possess  and  retain  this  right.  Having  the  right  to  invoke  the 
power  of  all  the  courts  of  the  country,  they  are  co-relatively  bound  to  respect  such 
powers  when  invoked  by  others  and  the  conditions  upon  which  the  rights  guaran- 
teed by  the  Treaty  are  maintained  is;  "that  such  rights  are  subject  to  the  laws  of  the 


508  LAW    OF    CIVIL    PROCEDURE. 

country" — the  purpose  of  the  Treaty  being  to  prevent  the  laws  of  the  country  from 
discriminating  against  Spanish  subjects  in  regard  to  these  matters  by  reason  of  their 
citizenship. 

The  Provisional  Court  of  Puerto  Rico  has  been  instituted,  installed  and  maintained 
as  one  of  the  Courts  of  the  country.  Spanish  subjects  are  therefore  subject  to  its 
jurisdiction  the  same  as  other  residents  of  the  Island  in  cases  wherein  the  Court  has 
jurisdiction  of  the  subject  matter.  It  is  maintained  pursuant  to  a  law  of  the  country 
and  Spanish  residents  remaining  in  said  Island,  or  rights  arising  in  said  Island  are 
subject  to  the  powers  of  both  the  law  and  the  courts. 

*  *  *  *  *  *  * 

If  the  case  *  *  *  is  one  wherein  a  native  of  Puerto  Rico,  being  made  a  co-re- 
spondent would  be  required  to  respond  to  the  mandate  of  the  Provisional  Court,  it 
follows  that  a  Spanish  citizen  must  likewise  respond  to  proper  service  of  process,  or 
suffer  the  consequences  of  his  default. 

*  *  *  *  *  *  # 

A  Spanish  mortgagee  has  not  the  right  to  have  an  action  against  him  tried  and 
determined  in  an  Island  Court  because  he  is  a  citizen  of  Spain. 

II.  In  accordance  with  the  foregoing  interpretation,  all  questions  of 
jurisdiction  arising  between  the  United  States  provisional  court  insti- 
stuted  by  General  Orders,  No.  88,  series  1899,  these  headquarters,  and 
the  insular  courts  instituted  by  General  Orders,  No.  118,  series  1899, 
these  headquarters,  will  be  determined  by  the  said  courts  in  conformity 
therewith. 

III.  Pursuant  to  instruction  from  the  War  Department,  the  offence 
of  counterfeiting  coins  of  the  Island  of  Puerto  Rico  does  not  lie  within 
the  jurisdiction  of  the  United  States  provisional  court,  and  General 
Orders,  No.  88,  series  1899,  these  headquarters,  is  amended  accordingly. 

By  command  of  Brigadier-General  Davis: 

W.  P.  HALL, 

Ad/jutcmt-  General. 


INDEX 


[References  are  to  articles,  except  when  otherwise  stated.] 
Abandonment: 

Of  actions  and  remedies.     (See  Extinction. ) 

Of  remedy,  when  to  be  considered 408, 409 

Of  merchandise,  discharge  and  intervention,  and  bond  for  cargo 2108-2121 

Absentees,  how  to  be  summoned  in  proceedings  to  avoid  litigation 467 

Abstention  of  judge,  etc.,  from  taking  cognizance  of  a  case  without  awaiting 

challenge 190,197.219 

Acceptance  of  power  of  attorney  by  solicitor,  when  presumed 5 

Accounts  of  solicitors,  when  to  be  presented 8 

Acknowledgment  of  credits  in  insolvency  proceedings 1248-1263 

When  trustees  to  examine  and  liquidate  credits 1248 

Statements  to  be  prepared  by  trustees 1249 

When  judge  to  call  meeting  of  creditors  for 1251 

Period  to  elapse  between  call  and  holding  of  meeting 1252 

Proceedings  at  meeting  of  creditors  for 1253  et  seq. 

How  creditors  to  be  informed  of  action  of  meeting 1258 

Objections  to  resolutions  of  meeting 1259 

Trustees  must  support  resolutions  of  majority 1262 

(See  Insolvency  proceedings. ) 
Action: 

Appearance  in 1 

Who  may  appear  in 2 

To  avoid  litigation,  parties  may  appear  in  person  in 4 

Not  to  be  commenced  until  issue  of  property  decided 22 

Real,  who  are  competent  to  hear 62 

Personal,  who  are  competent  to  hear 62 

Mixed,  who  are  competent  to  hear 62 

Involving  civil  status  of  persons,  judge  competent  in 63 

Rendition  and  settlement  of  accounts,  judge  competent  in 63 

Upon  guaranties  and  the  performance  of  obligations,  judge  competent  in, 

No.  3 63 

Of  unlawful  detainer,  judge  competent  in,  No.  13 63 

Of  redemption,  judge  competent  in,  No  13 63 

Of  unlawful  detainer,  judge  competent  in,  No.  13 63 

Of  redemption,  judge  competent  in,  No.  13 63 

When  to  be  heard 332 

Cause  of.     (See  Cause  of  action.) 

Declaratory.    (See  Actions  of  greater  import;  Lesser  import;  Oral  actions. ) 

Of  greater  import: 

What  to  be  decided  in -. 482 

Complaint  and  summons 523-530 

What  to  contain,  etc.  (  See  Complaint,  Summons.) 

Dilatory  exceptions 531-538 

(See  Exceptions.) 

Answers,  counterclaims,  etc 539-548 

(See  Answers,  Counterclaims,  Replications,  Rejoinders. ) 

Pendency  of  second  action  is  a  dilatory  exception 532 

509 


510  INDEX. 

Action — Continued. 

Of  lesser  import: 

Parties  may  appear  in  person  in 4 

What  to  be  decided  in 483 

Complaint  to  be  served  on  defendant  with  summons 680 

Period  for  appearance  when  summoned  by  edicts 682 

Period  for  defendant  to  make  answer 682 

How  and  when  two  or  more  defendants  to  answer 683 

When  copies  need  not  be  attached  to  complaint 683 

When  defendant  to  be  declared  in  default 684 

What  exceptions  can  be  pleaded  by  defendant 686 

Counterclaims 687-688 

Effect  of  silence  or  evasive  answers 689 

Proceedings  not  to  be  suspended,  when 691 

When  judge  to  order  evidence  taken 692 

Period  within  which  to  order  evidence  taken 692 

Period  within  which  to  take  evidence 695-697 

How  evidence  to  be  taken 698 

How  and  when  witnesses  may  be  challenged 699 

Appeals  from  judgments 701 

When  to  be  considered  interposed 702 

When  appellee  may  agree  to  the  appeal 705 

When  day  to  be  set  for  hearing  of  appeal 708 

When  judgment  to  be  rendered  upon  appeal 709 

When  judgment  to  include  taxation  of  costs  against  appellant 709 

In  what  case  record  to  be  returned  to  judge  of  first  instance 710,  711 

Oral  actions 714-739 

Municipal  judges  only  ones  competent  in 714 

Exceptions 715 

Action  of  municipal  judge  when  considered  incompetent 716 

Action  when  defendant  does  not  agree  to  amount  of 717 

Form  of  hearing  and  rendering  decision 718  et  seq. 

Complaint,  what  to  contain  and  form  of 719 

When  summons  to  appear  to  be  made 720 

Citation  of  defendant,  how  to  be  made 721 

Service  of  complaint,  etc. ,  to  be  entered  on  record 723 

Manner  of  serving  summons  when  defendant  resides  elsewhere 723 

Citation,  how  to  be  made  when  defendant's  domicile  unknown 724 

Time  set  for  appearance  can  not  be  changed,  etc 726 

When  action  to  be  considered  abandoned 727 

When  plaintiff  to  pay  costs,  etc 727 

Action  to  proceed  in  default  of  defendant 728 

Proceedings  at  the  appearance 729 

When  final  judgment  to  be  entered 730 

When  reservation  of  rights  to  be  made 730 

Appeal 731 

When  it  may  be  taken 731 

Action  when  appellee  or  appellant  does  not  appear 734 

When  final  judgment  to  be  rendered 735 

Action  when  there  is  an  adjudgment  upon  costs 736 

Intervention,  etc.,  when  municipal  judge  to  decide 738 

Action  to  be  taken  when  request  made  for  permission  to  prosecute  or 

defend  as  poor  person 739 

Executory 1427-1541 

(See  Executory  process;  Compulsory  process;  Intervention.) 


INDEX.  511 

Action — Continued. 

Of  unlawful  detainer: 

General  provisions „ 1559-1567 

Judges  of  competent  jurisdiction 1560, 1561 

By  and  against  whom  actions  may  be  instituted 1562, 1563 

When  appeal  may  be  taken 1564 

When  decision  to  be  final 1565 

Before  municipal  courts 1568-1586 

How  action  to  be  heard  and  determined 1568 

How  complaint  to  be  made 1569 

Summons  for  oral  action 1570 

How  citation  to  be  served 1571-1575 

Rendition  of  judgment 1576 

Evidence  admissible 1577 

Taxation  of  costs 1580 

Appeal 1581  et  seq. 

Before  courts  of  first  instance 1587-1592 

How  to  be  heard  and  determined 1587, 1588 

Appeal  from  judgment  rendered,  proceedings,  etc 1589  et  seq. 

Execution  of  judgments 1593-1606 

Who  to  execute  judgment 1593 

When  execution  of  judgment  to  be  proceeded  with 1594, 1595 

For  redemption.     (See  Redemption.) 
Act  of  conciliation.     (See  Proceedings  to  avoid  litigation. ) 
Acts  of  voluntary  jurisdiction  in  commercial  matters,  general  provisions..  2070-2079 

(See  Voluntary  jurisdiction.) 
Adjudication: 

Of  profits,  losses,  etc. ,  in  judgments 359 

Of  property  to  persons  not  designated  by  name 1100-1127 

Administration  of  testate  successions:     (See  Testamentary  proceedings.) 

Of  estates  of  insolvents 1226-1246 

When  property  to  be  turned  over  to  trustees '   1226 

Duties  of  trustees 1227 

Payment  of  expenses 1228 

When  trustees  to  render  accounts 1229, 1240, 1243 

Call  of  meeting  of  creditors  by  judge 1231 

Property  to  be  sold  by  trustees 1232 

Manner  of  making  sale 1234 

How  property  to  be  appraised 1235 

Securities,  etc.,  may  be  sold  at  auction 1237 

Trustees  may  make  compromises 1239 

When  judge  to  approve  accounts 1241 

AVhen  books  and  papers  to  be  returned  to  insolvent 1244 

(See  Insolvency  proceedings. ) 

Of  a  bankruptcy 1348-1363 

Withdrawal  of  securities,  money,  etc. ,  from  deposit 1350 

Deposit  of  funds 1351 

Urgent  sales  of  property 1352 

Extraordinary  expenses 1355 

Appraisement  and  sale  of  property 1356 

Orders  of  commissioner  may  be  amended 1361 

Examination  of  accounts 1362 

Claims  against  trustees  for  losses  and  damages 1363 

Of  property  of  absentees 2030-2046 


512  INDEX. 

Administrative  authority.     (See  Competency;  Jurisdiction;  Eemedy  of  com- 
plaint. ) 

Administrative  proceedings  to  be  held  before  judicial  proceedings,  No.  7 532 

Admission  of  evidence,  etc 549-576 

Adoption  and  arrogation 1824-1831 

Agreements: 

Eeached  at  proceedings  to  avoid  litigation,  who  to  enforce 475 

When  action  for  annulment  of,  may  be  brought 476 

Alienation  of  the  property  of  minors,  etc 2010-2029 

Judicial  permission  necessary  for 2010 

Requisites  for  decree  of  sale 2011  <-t  K><  [. 

Property  to  be  appraised 2015 

Proceedings  if  no  bid  received  at  auction 2018  et  seq. 

Settlement  of  question  relating  to  rights  of  minors,  etc 2024  et  seq. 

Mortgage  of  property  of  minors,  etc 2029 

Amicable  compounders: 

Settlements  by 826-838 

Who  can  be 826 

What  provisions  applicable  to,  etc 827 

Compromise,  what  to  contain 827 

Legal  effects  of , 828 

Challenge  of 830 

How  to  be  interposed 831 

How  to  decide  questions 832 

How  judgment  to  be  rendered 834 

Remedy  against  judgment  of 835 

When  judgment  final 836 

Execution  of  judgments  of 837-838 

Appeals  for  annulment  of  decisions  of.     (See  Appeals  for  annulment  of 

judgment. 
Amounts  involved  in  causes  of  action: 

How  to  be  determined 488 

Must  be  precisely  determined 489 

Answers: 

Counterclaims,  replications,  and  rejoinders 539-548 

How  defendant  to  make  answer 539 

When  complaint  to  be  considered  answered 540 

What  exception  to  be  pleaded  in 541 

(See  Counterclaim,  Replication,  etc. ) 

To  be  referred  to  plaintiff 545 

Period  allowed  defendant  to  answer  in  actions  of  lesser  import 682 

How  and  when  two  or  more  defendants  to  answer  in  actions  of  lesser 

import 683 

Appeals: 

General  rules,  judgments  which  may  be  appealed  from,  terms,  effects,  etc. 

379,  381-397, 406-409,  678 

From  decisions  relating  to  disciplinary  corrections 

Appeals  from  judgments — 

In  oral  actions 

Of  arbitrators 817,821,822,825 

Second  instance: 

General  provisions 839-853 

When  appellant  to  appear  before  court 

When  appeal  not  to  be  allowed 


INDEX.  513 

Appeals — Continued. 

Second  instance — Continued. 

General  provisions — Continued. 

Costs  if  appeal  dismissed 841 

Abandonment  of  appeal 845-848 

Action  when  judgment  becomes  final 849 

To  whom  judgment  to  be  communicated  for  execution 852 

From  final  judgments  rendered  in  actions  of  greater  import 854-885 

Preparation  of  abstract 854 

To  whom  abstract  to  be  delivered,  etc 855 

Evidence  when  taking  of — 

Can  be  ordered 861 

To  be  requested 859 

Kequests  which  may  be  made  by  litigants 862 

Action  when  request  relating  to  evidence  is  made 863 

When  admission  of  evidence  to  be  ordered 864 

Remedies  against  rulings  relating  to  taking  of  evidence 866 

When  judgment  to  be  rendered 872 

When  period  for  rendering  judgment  suspended 873 

Appeals  for  annulment  of  judgment,  etc 874 

Argument,  written  or  printed,  when  permitted 875 

When  to  be  ordered 876 

What  necessary  to  allow 877 

Period  within  which  to  be  filed 878-880 

Remedies  against  orders  relating  to 881 

If  allowed,  abstract  must  also  be  printed 882 

To  whom  to  be  distributed 883 

Period  for  rendition  of  judgment,  how  to  be  computed 885 

From  interlocutory  judgments  and  rulings  and  in  actions  other  than  those 

of  greater  import 886-901 

To  whom  record  to  be  referred 887,888 

To  whom  abstract  to  be  delivered,  etc 889 

When  hearing  to  be  ordered 894, 900 

When  and  how  decision  to  be  rendered 895 

Evidence,  when  taking  of,  can  be  authorized 896 

Period  for 897 

When  relator  to  present  his  report 900 

For  annulment  of  judgment 1684-1793 

Court  competent 1684-1686 

When  it  lies 1687 

What  are  considered  final  decisions 1688 

Causes  on  which  it  must  be  based 1689 

When,  for  violation  of  law  or  legal  doctrine  lies 1690 

When,  for  breach  of  form  lies 1691 

When,  for  violation  of  law,  etc. ,  does  not  lie 1692 

Rulings  of  audiencias,  etc. ,  can  not  be  appealed  from  for  annulment 

of  judgment 1693 

Requisites  for  admission  of,  for  breach  of  form 1694 

Deposit  required  for  interposition  of 1696, 1697 

Preparation  of,  for  violation  of  law,  etc 1698-1713 

Interposition  and  admission  of,  for  violation  of  law,  etc 1714-1730 

When  appeal  to  be  filed 1714 

Documents  to  be  attached  to  appeal 1716, 1717 

5190 33 


514  INDEX. 

Appeals — Continued. 

For  annulment  of  judgment — Continued. 
When  appeal  to  be  filed — Continued. 

Constitution  of  chamber  for  hearing  and  decision  of 1724 

When  decision  upon  admission  of  appeal  to  be  rendered 1726 

When  appeal  not  to  be  admitted 1727 

When  appeal  to  be — 

Admitted 1728 

Partially  admitted 1729 

Hearing  and  decision  of,  admitted  for  violation  of  law 1731-1746 

Interposition,  etc.,  of,  for  breach  of  form 1747-1765 

Where  to  be  interposed 1747 

Requisites  of,  and  documents  to  accompany  appeal 1748, 1749 

When  appeal — 

To  be  admitted 1751 

Not  to  be  admitted 1753 

Return  of  deposit  to  appellant , . . .     1764 

Adjudgment  upon  costs 1 765 

For  breach  of  form  and  also  for  violation  of  law,  etc 1766-1771 

How  appeal  to  be  prepared 1766 

Taxation  of  costs 1769 

From  decisions  rendered  by  amicable  compounders 1772-1778 

Documents  to  be  presented  with  appeal 1772 

Statements  to  be  contained  in  appeal 1772-1773 

When  to  be  interposed 1774 

Where  to  be  presented 1775 

Provisions  to  be  observed  in  hearing,  etc 1776 

Taken  by  the  department  of  public  prosecution 1779-1783 

What  and  when  appeals  may  be  taken 1779, 1780 

Effects  of 1781 

Payment  of  costs 1782, 1783 

Provisions  common  to 1784-1793 

(See  also  orders  at  pages  444  and  470. ) 

When  execution  of  judgment  may  be  ordered 1 784 

Two  or  more  appeals  of  same  kind  to  be  heard  together 1786 

Withdrawal  of  appellant  from  appeal 1787 

Deposit  to  be  returned 1789, 1790 

Taxation  of  costs 1792 

For  review 1794-1809 

When  it  lies 1794, 1795 

Terms  within  which  to  interpose 1796  et  seq. 

Deposit  required 1797 

When  barred 1798 

Hearing  and  determination  of 1799-1803 

Where  to  be  interposed 1799 

Procedure  to  be  observed 1800 

Do  not  suspend  execution  of  judgments 1801 

Decisions  rendered  by  virtue  of 1802-1809 

Appearance: 

In  an  action 1 

How  to  be  made 

When  parties  may  appear  in  person 

Of  parties,  when  to  be  considered  attempt  at  conciliation 463 

When  nonappearance  to  be  considered  confession  of  judgment 592 


INDEX.  515 

Applications  for  permission  to  prosecute,  etc. ,  as  poor  person  to  be  passed  upon 

as  separate  issue 23-30 

Taxation  of  costs  in 31,  32 

Decision  on,  does  not  produce  effect  of  res  judicata 33 

To  civil  courts  for  modification  of  action  of  ecclesiastical  courts 125-152 

When  can  be  made 125 

Who  to  pass  on 126 

Who  may  apply  for 127 

Who  can  not  apply  for 128 

How  to  be  prepared 131, 132 

Appointment  of  trustees  in  insolvency  proceeding/s 1191-1225 

(See  Insolvency  proceedings. ) 

Of  officials  of  the  supreme  court  of  Cuba page  438 

Appraisement  and  sale  of  property  in  execution  of  judgments 921 

Apuntamiento,  preparation  of,  abolished,  etc. ,  in  Cuba 483 

Arbitrators: 

Settlements  by 789-825 

Who  can  be  an  arbitrator 789 

Number  and  selection  of 790 

Requisites  of  compromise 791,  792 

When  compromise  to  be  presented  to  arbitrators 793 

How  arbitrator  to  be  substituted 794 

When  compromise  of  no  effect 794 

How  refusal  or  excuse  of  arbitrator  from  acting  to  be  determined 796 

When  arbitrators  can  be  challenged 797,  798 

Who  challenge  of,  to  be  presented  to 798 

When  compromise  to  become  null 799 

Action  in  case  of  death  of 800 

When  period  fixed  for  decision  to  begin 801 

When  extension  of,  allowed 802 

Before  whom  proceedings  to  be  held 803 

Claims  and  documents  to  be  communicated  to  both  parties 805 

When  evidence  to  be  taken 807 

Period  for  the  admission  of  evidence 809 

What  means  of  proof  admissible 810 

When  parties  to  be  cited  for  judgment 812 

I  What  judgment  of  to  include 814 
How  judgment  to  be  rendered,  etc 815 
To  whom  disagreements  to  be  submitted 816 
Appeals 817, 821, 822, 825 

Period  within  which  to  take 818 

Remedies  against  orders  of  arbitrators 820 

And  experts,  appointment  of  in  insurance  contracts - 2136-2142 

,tion :  Petition  to  be  presented  to  presiding  judge  of  audiencia 1831 

TS  to  municipal  judges,  challenge  and  voluntary  abstention 188, 190, 194 

(^Challenge.) 

itions,  corporations,  and  other  judicial  entities,  who  are  to  appear  for  in 

court 2 

Attachment: 

Of  real  property  of  defendant  in  default 761 

How  long  to  continue  in  force 764 

(See  Seizure. ) 
And  temporary  deposit  of  the  value  of  bills  of  exchange 2089-2091 


516  INDEX. 

Attorneys: 

Solicitors  and  litigants 1-12 

Must  sign  petitions 10 

When,  may  demand  their  fees  of  solicitors 12 

To  be  assigned  to  poor  persons 27 

When  considered  to  have  accepted  defense  of  poor  persons 49 

Duties  of,  after  accepting 50 

Necessity  of  their  intervention  in  an  action  and  exceptions 3, 5, 10, 11 

Fees  of— 

How  to  be  fixed 422 

Which  are  not  to  be  included  in  taxation  of  costs 423 

Auditors  in  testamentary  proceedings.     (See  Testamentary  proceedings. ) 

Averages:  Classification  of  and  liquidation  of  gross,  etc 2092-2107 

Bankruptcy: 

Proceedings  in 1316-1394 

Judge  competent  in  (No.  8) 63 

General  provisions 1316-1320 

Merchant  who  is  bankrupt  is  not  subject  to  insolvency  proceedings 1316 

When  insolvency  proceedings  applicable 1317 

Proceedings  in  bankruptcy  of  railway  and  other  companies 1318 

Division  of  proceedings 1319, 1320 

Declaration  of 1321-1347 

Who  may  make  petition  for 1321 

How  petition  to  be  drafted 1322 

When  judge  to  make,  upon  petition  of  creditor 1323 

Proceedings  when  bankrupt  opposes  declaration 1324  et  seq. 

Eights  of  creditors  opposing  rehearing 1326 

When  judge  to  order  rehearing 1327 

Action  for  losses,  etc. ,  instituted  by  bankrupt 1330 

When  judge  to  appoint  commissioner 1331 

When  commissioner  to  take  charge  of  property,  etc 1332 

How  arrest  of  bankrupt  to  be  effected 1333 

Bail,  etc.,  of  bankrupt 1334 

How  bankruptcy  to  be  made  public 1335 

Detention  of  correspondence 1336-1337 

When  bankrupt  to  be  released 1338 

Commissioner  to  file  statement  of  creditors  of  bankrupt 1340 

Meetings  of  creditors 1341-1344 

Objection  to  appointment  of  trustees 1345, 1346, 1347 

Administration  of 1348-1363 

(See  Administration.) 

Eetroactive  effects  of 1364-1375 

Trustees  have  power  to  demand  retroaction 1364 

Complaint  of  omissions  to  be  made  to  commissioner 1365 

Statements  to  be  prepared  by  trustees 1366-1368 

Actions  instituted  by  trustees 1369-1372 

Examination,  classification,  and  payment  of  credits  against  the  estate  of 

the  bankrupt 1376-1379 

Classification  of  the  bankruptcy  and  discharge  of  the  bankrupt 1380-1386 

How  record  to  be  commenced 1380 

Statement  to  be  presented  by  trustees 1381 

When  judge  to  make  classification 1382 

When  evidence  to  be  taken 1383 

When  criminal  proceedings  against  bankrupt  to  be  instituted 1384 


INDEX.  517 

Bankruptcy — Continued. 

Classification  of  the  bankruptcy  and  discharge  of  the  bankrupt — Cont'd. 

What  acts  trustees  may  perform  in  criminal  proceedings 1385 

How  petitions  for  discharge  to  be  heard 1386 

Settlements  between  creditors  and  the  bankrupt 1387-1394 

When  proposition  for  settlement  admissible 1387 

Petition  of  bankrupt  for  settlement,  when  to  be  granted 1388 

Extraordinary  meeting  for  discussion  of  settlement 1390 

What  creditors  can  not  object  to 1391 

Bankrupt  and  trustees  to  be  heard  on  objection  to 1392 

Proceedings  after  expiration  of  period  for  admission  of  evidence 1393 

Benefit  of  poverty.     (See  Poor  person;  Poverty;  Declaration  of  poverty.) 

Bills  of  exchange,  attachment  and  temporary  deposit  of  the  value  of 2089-2091 

Buildings.     (See  Constructions.) 

By-laws  are  considered  public  documents 595 

Cassation.     (See  Appeals  for  annulment  of  judgment. ) 
Cause  of  action: 

May  be  submitted  to  the  decision  of  arbitrators,  etc 486 

Exceptions 487 

Which  are  to  be  decided — 

In  actions  of  greater  import 482 

In  actions  of  lesser  import 483 

In  oral  actions 485 

Amount  involved  in,  how  to  be  determined 488 

Certificates  issued  by  brokers  are  public  documents 595 

Challenges: 

General  provisions 188-193 

Justices,  etc. ,  may  be  challenged  for  legitimate  cause  only 188 

What  is  legitimate  cause  of 189 

Who  can  interpose 191 

When  to  be  interposed 192 

I  Of  justices,  judges  of  first  instance,  and  assessors 194 
How  to  be  made 194 
Action  of  judge  if  cause  of,  considered  proper 197 
Decision  admitting,  etc. ,  who  to  be  communicated  to 198 
When  to  be  disallowed 199 
Interposition  of,  does  not  suspend  action 200 
Who  to  hear  and  determine 203,  206 
Of  municipal  judges 218-233 
(See  Municipal  judges.) 

Of  subordinate  officials  of  courts *  . .  234-247 

Of  experts.     (See  Experts.) 

Remedies  against  decisions  on 237 

Separate  proceedings  on,  who  to  hear,  etc 238, 239 

Of  secretaries  of  municipal  courts,  who  to  replace 242 

Does  not  suspend  decision  of  cause 244 

Who  to  pay  costs - 245 

Of  witnesses.     (See  Witnesses. ) 

Of  arbitrators 797,798 

To  whom  to  be  presented 798 

Of  amicable  compounders 830, 831 

Chambers  of  justice: 

Number  of  justices  necessary  to  reach  agreements 317, 325, 326-329, 441 

Their  constitution  in  audiencias  and  in  the  supreme  court 317, 325 


518  INDEX. 

Change  of  venue.     (See  Inhibition-  Declinature. ) 

Children:  Substitution  of  consent  of  parents,  etc.,  to  contract  marriage.  1921  et  seq. 

Citation: 

How  to  be  served 271 

By  whom  to  be  made 273 

Writ  of,  requisites  of 272 

In  oral  actions: 

How  to  be  made  when  domicile  of  defendant  unknown •       724 

How  to  be  made 721 

Of  creditors  in  insolvency  proceedings 1191-1225 

(See  Insolvency  proceedings.) 

Civil  disputes,  who  are  competent  to  hear 51 

Civil  liability: 

Of  judges,  etc 902-917 

How  to  be  enforced 902 

When  action  for  can  be  instituted 903, 904 

When  action  barred 904 

Who  can  not  institute  action 905 

Documents  to  be  attached  to  complaint 906 

When  appeal  in  complaint  allowed 908 

How  to  be  decided 909 

Action  against — 

Municipal  judge,  who  to  hear 910 

Judge  of  first  instance 911 

Justices  of  an  audiencia 912 

Costs,  who  to  pay 915 

Judgment  rendered  upon,  can  not  alter  final  judgment  in  action 916 

Civil  mariage  in  Cuba 441 

Civil  rights,  persons  who  do  not  fully  enjoy 2 

Civil  status,  judge  competent  in  actions  relating  to 63,  No.  1, 482 

Classification  of  credits,  in  insolvency  proceedings 1264-1275 

When  meeting  for  classification,  etc. ,  to  be  called 1264 

Period  between  call  and  holding  of  meeting  for 1265 

Statements  to  be  prepared  by  trustees 1266, 1267 

Proceedings  at  meeting  for 1269  et  seq. 

Objections  to  resolutions  adopted  at  meeting  for 1273, 1274, 1275 

Of  bankruptcy  and  discharge  of  bankrupt.     (See  Bankruptcy. ) 

Of  credits  in  bankruptcy  proceedings 1376-1379 

Clerks  and  secretaries  of  courts;  general  provisions.  249,  250, 279,  280,  290,  315,  318, 412 

Codicils.     (See  Wills.) 

Commercial  acts  requiring  peremptory  judicial  intervention 2123,  2135 

Commercial  books: 

Are  means  of  proof 577 

Effects,  deposit  and  examination  of 2080,  2088 

Companies.     (See  Corporations. ) 

Comparison: 

Of  public  documents,  who  to  make 598 

What  documents  are  valid  without 597 

Of  handwriting 605,  608 

When  it  may  be  requested 605 

Who  to  make  comparisons  of 605,  608 

What  documents  are  to  be  considered  genuine 607 

Competency: 

To  hear  personal,  real,  or  mixed  actions 62 

And  questions  of  jurisdiction 51, 125 


INDEX.  519 

Competency — Continued. 

How  determined  when  two  or  more  judges  in  town 59 

Questions  of — 

How  raised 72, 80 

Can  not  be  raised — 

By  court 74 

In  closed  proceedings 76 

Who  to  hear  and  determine 80,  99,  111,  114, 115 

Positive  or  negative — 

Who  can  raise 116 

Who  to  hear 117 

Complaints: 

In  intervention,  how  to  be  heard,  etc 487 

And  summons  in  actions  of  greater  import 523-530 

What  to  contain 523 

To  be  referred  to  defendant 524 

When  to  be  considered  answered 526 

When  second  summons  to  be  issued 527 

When  defendants  to — 

Be  declared  in  default 527 

Be  considered  party 529 

Litigate  jointly,  etc 530 

In  actions  of  lesser  import 680 

When  copies  need  not  be  attached  to 683 

In  oral  actions — 

What  to  contain,  etc 719 

Service  of,  and  citation  to  be  entered  on  record 723 

In  executory  actions 1437 

Composition  and  respite  in  insolvency  proceedings 1128-1153 

Who  may  request,  and  when 1128 

Meetings  of  creditors 1129-1130 

I             Who  to  be  cited  to  attend 1131 

Executions  may  be  consolidated  with  insolvency  proceedings 1133 

Exceptions 1134 

Creditors  may  be  represented  by  third  person 1135 

Number  of  creditors  necessary  to  hold  meeting 1136 

How  meeting  to  be  held 1137 

What  creditors  not  required  to  attend  meeting  of  creditors 1138 

Wife  of  debtor  can  not  take  part  in  meeting 1139 

When  proposition  for,  to  be  considered  rejected 1140 

When  proceedings  to  be  closed 1141 

Objection  may  be  made  to  decision  favorable  to  debtor 1142 

Creditors  not  present — 

To  be  notified  of  decision 1143 

Must  object  at  once -. 1144 

Periods  within  which  to  file  objections 1145, 1146 

Causes  for  which  agreements  for,  may  be  impugned 1147 

How  objection  to  be  made 1148 

Costs 1152 

When  debtor  may  be  declared  involuntary  insolvent 1153 

Compromise  in  proceedings  before  arbitrators: 

Requisites  of 791,792 

When  to  be  presented  to  arbitrators. 793 

When  of  no  effect ..                                                    794 


520  INDEX. 

Compromise — Continued . 

When  to  become  null  and  void 799 

In  proceedings  before  amicable  compounders: 

What  to  contain 827 

Legal  effects  of 828 

Compulsory  process: 

More  than  one  writ  for,  not  to  be  allowed 309 

(See  Periods  of  time.) 

Against  litigants  and  their  solicitors 8 

For  the  recovery  of  records  and  instruments 308,  521 

General  provisions  in  executory  actions 1479-1529 

In  commercial  affairs 1542-1558 

Against  whom  and  where  to  be  instituted 1542 

Manner  of  proving  claims 1543 

Exceptions  which  may  be  pleaded 1549 

How  exceptions  pleaded  to  be  proven 1550 

Evidence 1551-1554 

When  judgment  to  be  rendered 1555 

Taxation  of  costs 1555 

Appeals 1556 

Conciliations:  Proceeding  to  secure.     (See Proceedings  to  avoid  litigation.) 
Confession  in  court: 

Is  a  means  of  proof 577 

When  litigants  required  to  make  statements  under  oath 578 

Interrogatories  to  be  in  writing,  etc 580,  581 

Judge  to  set  day  for  parties  to  appear  to  answer  interrogatories 582 

When  judge  to  decide  upon  admission  of  questions 583 

Answers  must  be  affirmative  or  negative 585 

When  witness  may  refuse  to  answer 586 

Testimony  to  be  read  to  person  giving  it 588 

Action  to  be  taken  when  litigant  unable  to  appear  to  answer 590 

When  litigant  may  be  obliged  to  appear  in  court  to  give  testimony 591 

When  nonappearance  to  be  considered  confession  of  judgment 592 

Testimony  in  actions  in  which  the  State,  etc.,  is  interested 594 

Consent  of  parents,  etc. ,  to  contract  marriage,  substitution  for 1918-1941 

Consolidation: 

Of  actions 153-159 

What  actions  may  be  consolidated 153 

What  actions  can  not  be  consolidated 154 

When  not  permitted 157 

Effect  of 159 

Of  records  of  proceedings 160-187,  321, 1478 

When  to  be  ordered 160, 161 

When  to  be  requested 163 

What  records  may  be  consolidated 164 

What  records  can  not  be  consolidated 165, 166 

Constitution  and  attributes  of  the  supreme  court  of  Cuba pages  432  et  seq. 

Constructions,  summary  proceedings  relating  to 1661-1683 

Contendoso  administrativo,  appeals  and  remedies  allowed 463 

Copies: 

Of  instruments  and  documents  and  their  purposes 514-522 

To  be  attached  to  instrument,  etc. ,  in  declaratory  actions 514-515 

Reference  of,  to  opposite  party  or  parties 516 

Effect  of  omission  of 517 

Object  of,  etc 519-522 


INDEX.  521 

Corporations: 

Associations  and  other  judicial  entities,  who  are  to  appear  for  in  court 2 

Civil  and  commercial,  domicile  of 66 

Correspondence.      (See  Documents.) 

Costs: 

Duties  and  rights  of  solicitors  with  regard  to 5,  7, 8 

When  fees  of  solicitors  and  attorneys  not  included  in 11 

In  issues  of  poverty 31,  37-39 

In  questions  of  competency 108, 151 

In  challenges 211, 227, 228, 234 

In  compulsory  process 309 

In  proceedings  to  avoid  litigation 474 

In  abandoned  actions 413, 414 

When  to  be  imposed  as  disciplinary  corrections 449 

In  appeals 395 

In  proceedings  to  avoid  litigation,  who  to  pay 474 

And  expenses  of  witnesses 644 

In  oral  actions,  when  plaintiff  to  pay 727 

In  the  second  instance  of  actions  of  lesser  import 709 

In  proceedings  in  default 780,  781 

In  appeals  for  annulment  of  judgment 1765, 1769, 1782, 1783, 1792 

Counter  claims: 

Judge  competent  in 63,  No.  4 

Answers,  replications,  and  rejoinders 539, 548 

When  can  not  be  filed 542 

And  exceptions  to  be  heard,  etc.,  at  same  time 543 

In  actions  of  lesser  import 687-688 

Courts: 

When  considered  to  have  jurisdiction 53, 54 

Can  not  raise  questions  of  competency 76 

Cross  complaints.     (See  Counter  claims. ) 

Cross  interrogatories,  when  to  be  admitted,  etc.,  in  actions  of  greater  import.      640 

Curators.     (See  Tutors.) 

Custody  of  persons 1879-1917 

For  whom  custody  may  be  ordered 1879 

Of  married  woman 1880  et  seq. 

Of  single  woman 1900  et  seq. 

Of  orphans 1914  et  seq. 

Deaf  mutes,  how  to  give  their  testimony 657 

Death  of  litigant  or  solicitor  permits  suspension  of  hearing 323 

Decision: 

Granting  or  refusing  declaration  of  poverty  does  not  produce  effects  of  res 

judicata 33 

Judicial: 

Orders,  rulings,  judgments,  final  judgments,  ejecutorias,  etc.,  manner 

and  form  in  which  to  be  rendered 251-253, 336,  Nos.  6  and  7, 358-374 

Remedies  against  those  of — 

Inferior  judges 375-399 

Audiencias 400-403 

The  Supreme  Court -  404, 405 

Common  provisions 406-409 

Nullity  of,  rendered  by  intimidation  or  force 441 


522  INDEX 

Declaration  of  poverty: 

Of  whom  to  be  requested 21 

Applicant  for,  must  be  at  once  defended  as 27 

In  one  action  can  not  be  used  in  another 35 

Rights  which  it  gives,  etc 4, 13-50 

Of  insolvency.     (See  Insolvency. ) 
Of  bankruptcy.     (See  Bankruptcy. ) 

Declaratory  actions: 

What  are 480-481 

Rules  to  determine  proper  action 482-495 

What  to  be  decided — 

In  declaratory  actions  of  greater  import 482 

In,  of  lesser  import. 483 

In  oral  actions 485 

Preparatory  proceedings 496-501 

Presentation  of  documents 502-513 

Copies  of  instruments,  etc 514-522 

Declinature 72  et  seq. 

Defaults.     (See  Periods  of  time. ) 

When  defendant  in  action  of  lesser  import  to  be  declared  in 684 

Defect,  legal,  is  a  dilatory  exception 532 

Defense  as  poor  person,  when  not  to  be  granted 17, 18 

Demarcations.     (See  Surveys. ) 

Deposit  and  examination  of  commercial  effects 2080-2088 

Temporary,  and  attachment  of  the  value  of  bills  of  exchange 2089-2091 

Disagreements : 

Manner  of  adjusting  of  justices 350-357 

Who  to  attend  to  adjust 352 

Who  to  set  time  for  hearings  to  adjust 353 

Discharge  and  abandonment  of  merchandise : 2108-2121 

Disciplinary  corrections 436-458 

Who  has  power  to  impose 436 

Upon  whom  may  be  imposed 436,  439, 442,  444 

Causes  for  which  imposed 437 

Penalty  for  not  complying  with  order  of  expulsion 438 

What  corrections  may  be  imposed 448 

Appeals  from 455 

When  department  of  public  prosecution  to  be  informed  of 457 

When  to  be  imposed  upon  attorneys  and  solicitors 442 

Of  witnesses 439 

Dispatch : 

Hearing — 

Voting  upon  and  decision  of  judicial  matters 313-357 

Ordinary 313-334 

Justices  ponentes 335-337 

(See  Ponentes. ) 
When  to  be  public 313 

Dispensation  with  law 1979-1992 

How  proceedings  for,  to  be  instituted 1979 

Evidence  to  be  presented 1980 

Distribution  of  business: 

Among  courts,  etc 429-435 

How  to  be  done 429 

Penalties  for  improper 433, 434 

Actions  not  subject  to 435 


INDEX.  523 

Division  of  estate.     (See  Testamentary  and  intestate  proceedings.) 
Documents: 

To  be  attached  to  the  first  instrument 3 

Acknowledgment  of  receipt  of 250 

To  be  attached  to  the  complaint  and  answer 461, 502,  503,  504, 514, 515,  680 

Presentation  of 502-513 

Copies  of ,  etc 514-522 

How  presentation  to  be  made 504 

Can  not  be  admitted  after  filing  of  complaint,  etc 505, 506 

Exceptions 505,  512, 693 

After  the  period  for  taking  evidence 507  et  seq. 

Question  as  to  authenticity,  legality,  or  correctness  of  documents  or  copies 

thereof 510,511 

Provisions  of  articles  502-512  and  514-521  not  applicable  to  oral  actions. .      522 
To  be  attached  to  applications  for  permission  to  prosecute,  etc. ,  as  a  poor 

person 28 

Formal,  public,  private,  and  correspondence  are  means  of  proof 577 

Public  and  formal — 

What  are 595 

What  is  required  to  make  them  valid 596 

What  documents  are  valid  without  comparison 597 

Comparison  of,  who  to  make 598 

Executed  in  other  countries,  when  valid 599 

Translation  to  accompany  documents  in  foreign  language 600 

Private- 
Correspondence  and  books  of  merchants 601-604 

To  be  attached  to  record  of  proceedings 601 

When  parties  not  compelled  to  exhibit 602 

How  to  be  acknowledged,  etc 603 

Commercial  books  employed  as  evidence 604 

Comparison  of  handwriting  of 605-608 

Importing  a  confession  of  judgment 1427 

Domicile: 

Of  civil  and  commercial  corporations 66 

Children  under  parental  authority 64 

Employees 67 

Married  women 64 

Merchants 65 

Minors  and  incapacitated  persons 64 

Soldiers,  in  active  service 68 

Drafts.     (See  Bills  of  exchange. ) 
Duties  of  solicitors: 

After  accepting  power  of  attorney 5 

While  discharging. 6 

.  Ecclesiastical  judges.     (See  Competency.) 

Elucidation  of  a  judgment 310,  362, 406 

Employees,  subordinate,  of  the  supreme  court  of  Cuba page  437 

Error,  writ  of.     (See  Appeal  for  annulment  of  judgment. ) 

Idence: 
Admission  of,  time  within  which  to  be  taken,  etc 549-576 
Ruling  ordering,  to  be  taken  can  not  be  appealed  from 550 
Litigants  may  submit  case,  without  taking  of 551 
Period  for  taking — 
Divided  into  two  parts 552 


524  INDEX. 

Evidence — Continued. 

Can  be  suspended  by  reason  of  force  majeure 553 

Extraordinary  period  for  taking 554, 555 

What,  required  for  extraordinary  period  to  be  granted 556 

Provisions  relating  to  extraordinary  period 557,  558,  560 

Ruling  relating  to  extraordinary  period  may  be  appealed  from  for  review 

only 559 

When  litigant  to  pay  indemnity 561 

Supplementary  pleadings 562 

To  be  given  to  opposite  parties 563 

What,  to  be  confined  to 564 

When,  may  be  rejected 565 

Remedies  against  decisions  relating  to 566 

Documentary,  to  be  examined  by  the  judge,  etc 568 

Proceedings  for  taking  of,  to  be  public 569 

Judge  to  fix  day  for  taking  of 572 

Parties  may  designate  person  to  represent  them  at  taking  of 573 

Separate  records  to  be  made 575 

When  proceedings  for  taking  of,  are  null 576 

Of  witnesses 636-658 

(See  Witnesses. ) 
In  actions  of  lesser  import — 

When  judge  to  order  taken 692 

Period  within  which  to  take 695-697 

How  to  be  taken 698 

In  proceedings  in  default,  when,  of  defendant  to  be  received  at  second 

instance 766 

In  settlements  by  arbitrators — 

When  to  betaken 807 

Period  for  the  admission  of , 809 

In  appeals 859,861,863-866,896,897 

(See  Appeals. ) 

In  execution  of  judgments 936-940 

(See  Judgments,  execution  of. ) 

In  executory  actions 1467-1469 

Examination : 

Of  books,  papers,  etc.,  how  to  be  made 570 

Classification,  etc. ,  of  credits  against  bankrupts 1376-1379 

And  deposit  of  commercial  effects 2080-2088 

Exceptions: 

Judges  taking  cognizance  of  an  action  have  jurisdiction,  etc. ,  over 55 

Dilatory 531-538 

If  pleaded  by  defendant,  no  answer  required,  etc 531 

What  are  admissible  as 532, 533 

When  to  be  pleaded 534 

How  to  be  pleaded 535 

To  be  referred  to  plaintiff 536 

What  exceptions  to  be  decided  first,  etc 537 

Which  can  be  pleaded  in  answer  to  complaint 541 

And  counterclaim  to  be  heard  at  same  time 543 

Of  res  judicata  to  be  heard  separately 543 

Which  may  be  pleaded  by  defendant  in  action  of  lesser  import 686 

Which  may  be  pleaded  in  executory  actions 1462-1464 

Execution  of  judgments.     (See  Judgments. ) 


INDEX.  525 

Executory  process 1427-1478 

Executory  action  to  be  based  on  act  importing  confession  of  judgment. . .     1427 

Instruments  which  import  a  confession  of  judgment 1427 

Signature  of  private  document  to  be  acknowledged 1428, 1429 

Citation  of  debtor 1430 

When  execution  to  issue 1431, 1438 

Confession  does  not  constitute  an  instrument  importing  confession  of  judg- 
ment       1432 

For  what  execution  can  issue 1433, 1434 

How  value  of  debt  to  be  computed 1434, 1435, 1436 

Preparation  of  complaint 1437 

Appeal  from  ruling  denying  execution 1439 

Proceedings  after  execution  has  been  issued 1440-1442 

Deposit  of  amount  claimed 1444 

Order  in  which  attachment  to  be  levied 1445 

Railways,  etc. ,  no  attachment  can  be  levied  on 1446 

Bed  in  daily  use  can  not  be  attached. 1447 

Property  exempted  from  attachment 1446, 1447 

Attachment  of  salaries,  pensions,  etc 1448 

Attachment  of  real  property 1451 

Creditor  may  select  property 1452 

When  increase  of  attachment  to  be  ordered 1453 

Notice  of  sale  to  be  served  on  debtor 1457 

Manner  of  serving  notice 1457-1458 

Objection  of  debtor  to  execution 1459-1461 

Exceptions  which  can  be  pleaded  in  executory  action 1462-1464 

Basis  for  request  to  vacate  execution 1465 

Objection  to  be  referred  to  plaintiff 1466 

Submission  of  evidence 1467-1469 

Citation  for  judgment 1470 

When  judgment  to  be  rendered 1471 

Taxation  of  costs 1443, 1472, 1473 

Appeal  from  judgment 1474  et  seq. 

Judgment  does  not  give  rise  to  exception  of  resjudicata 1477 

Questions  of  competency 1478 

Consolidation 1478 

:pert: 

Fees  of 422,426-428 

Must  have  a  diploma 614 

Evidence  of,  is  means  of  proof 577 

Opinions 609-631 

When  expert  testimony  may  be  used 609 

Number  of  experts  to  be  fixed  by  person  requesting 610 

Term  within  which  to  agree  upon 613 

When  judge  to  select 615 

Challenged,  not  to  be  appointed 616 

When  they  may  be  challenged 618 

How  challenge  of,  to  be  interposed 619 

What  are  legitimate  causes  of  challenge 620 

Procedure  after  challenge  presented 623 

Challenging  party,  when  to  pay  costs 624 

To  make  their  report  in  writing  or  orally 626 

Explanations  which  may  be  requested  of 627 

How  three  experts  to  give  their  report -. 628 


526  INDEX. 

Expert — Continued. 

When  report  of  college,  etc. ,  may  be  requested  by  judge 630 

How  expert  testimony  to  be  considered 631 

In  insurance  contracts 2136-2142 

Extension  of  time 305-307 

(See  Periods  of  time. ) 

Extinction: 

Of  remedies 312, 407 

Of  actions 410-419 

When  an  action  is  extinguished 410 

When  not  extinguished 411 

Judge  to  be  informed  of  expiration  of  periods 412 

At  first  instance 41 3 

At  second  instance 414 

Of  first  instance  does  not  extinguish  cause  of  action 418 

Fees: 

When  attorneys  may  demand  them  of  solicitors 12 

Of  attorneys  and  solicitors,  etc. ,  how  to  be  fixed 422-426 

Provisions  relating  to  fees  of  attorneys 5, 10,  37,  39, 448 

Of  experts 422,  426-428 

To  be  charged — 

For  celebrating  a  marriage  in  Cuba page  441 

By  court  officials,  etc. ,  in  Porto  Rico page  504 

Final  judgments,  what  are  called 369 

Fines,  disciplinary  corrections,  general  and  special  provisions 212, 

213,  228,  234,  263,  268,  280,  308, 438, 448,  818,  819 

Fiscal  and  assistant  fiscal  of  the  supreme  court  of  Cuba,  duties  of,  etc page  437 

Foreigners,  judge  competent  when  they  are  defendants  or  plaintiffs 70 

Form,  breach  of.     (See  Appeals  for  annulment  of  judgment. ) 

Friendship,'  cause  of  challenge,  189,  No.  9. 

Greater  import.     (See  Actions  of.) 

Gross  averages.     (See  Averages.) 

Guardians.     (See  Tutors.) 

Habeas  corpus  in  Cuba: 

Who  may  prosecute  writ page  475, 1 

Writ  may  issue  on  any  day page  475, 1 

Parties page  475, 1 

How  and  to  whom  application  for  writ  must  be  made page  475,  II 

Contents  of  petition page  476,  III 

When  writ  must  be  granted page  476,  IV 

Penalty  for  refusing  writ page  476,  IV 

Form  of  writ page  477,  V 

When  writ  sufficient page  477,  VI 

When  writ  to  issue  without  application page  477,  VII 

Return,  its  contents page  477,  VIII 

Time  of  returning  writ page  478,  IX 

Body  of  persons  imprisoned  or  restrained  to  be  produced page  478,  X 

Proceedings  on  disobedience  of  writ page  478,  XI 

Order  to  produce  person  imprisoned  or  restrained page  479,  XII 

Proceedings  on  return  of  writ page  479,  XIII 

When  person  imprisoned  or  restrained  to  be  remanded page  479,  XIV 

Proceedings  on  irregular  commitment page  479,  XV 

Bail,  when  and  how  ordered page  479,  XVI 

When  persons  imprisoned  or  restrained  may  be  committed  to  another 
officer page  480,  XVII 


INDEX.  527 

Habeas  corpus  in  Cuba — Continued. 

Custody    of     persons    imprisoned     or     restrained    pending    proceed- 
ings    page  480,  XVIII 

Notice   to    be   given    before    discharging    person    imprisoned    or    re- 
strained    page  480,  XIX 

Person  imprisoned  or  restrained  may  controvert  return page  480,  XX 

Proceedings  on  sickness  of  person  imprisoned  or  restrained page  480,  XXI 

Obedience  to  order  to  discharge,  how  enforced page  481 ,  XXII 

When  discharge  a  bar  to  reimprisomnent Page  481,  XXIII 

Violation  of  last  paragraph page  481,  XXIV 

Transfer  or  concealment  of  person  imprisoned  or  restrained  to  elude 

writ page  481,  XXV 

Order  when  person  restrained  about  to  be  carried  out  of  island .  page  482,  XXVI 

Arrest  of  the  person  detaining  the  persons  restrained page  482,  XXVII 

Proceeding  where  a  writ  is  refused  by  judge  of  instruccion. .  page  482,  XXVIII 

When  subsequent  writ  may  issue page  482,  XXIX 

Penalty  for  refusing  copy  of  process page  483,  XXX 

Repealing  paragraph page  483,  XXXI 

When  this  order  takes  effect page  483,  XXXII 

Handwriting.     (See  Comparison  of. ) 
Hearings  of  actions  and  issues: 

Public  and  behind  closed  doors 313,  314 

When  to  be  held 323 

Ordinary  and  dispatch 313 

How  to  be  set 321 

When  may  be  suspended : 323,  324 

How  to  begin 330 

Duties  of  justice  presiding  at 333 

Where  to  be  entered 334 

Judgments  and  final  pleadings (>H6-678 

When  public  hearing  may  be  requested 667 

Action  of  judge  when  refusing  to  grant  public 675 

(See  Pleadings). 

In  oral  actions 718  et  seq. 

In  proceedings  in  default  of  defendant 772  et  seq. 

Heirs  of  solicitors,  rights  of 8 

Holidays,  what  are  to  be  considered  legal  in  Cuba page  465 

tfombre  bueno,  when  to  act 469 

Illness  of  attorney,  ground  for  suspension  of  hearing 323 

Incapacitated  persons,  who  are  to  appear  for,  in  actions 2 

Incidental  issues: 

Judges  taking  cognizance  of  an  action  have  jurisdiction  over,  raised  therein .         55 

How  to  be  heard,  etc 740,  743,  745 

Requisites  in  order  to  be  classified  as 741 

When  separate  record  required  for •     745 

What  to  contain,  etc 746 

At  whose  expense  to  be  made 746 

To  be  referred  to  opposite  party 748 

Parties  may  request  evidence  to  be  taken 751 

When  evidence  to  be  taken 751 

Period  for  the  taking  of 752,  753 

When  judgment  to  be  rendered 757 

Appeal  from  j udgment  on 757 

Petition  for  rehearing  allowed 759 

Remedy  against  decision  of  audiencia  or  supreme  court  on 760 


528  INDEX. 

Inhibitions  (see  Compentency,  questions  of): 

Pleas  of,  to  be  interposed  in  writing,  etc 84 

Stays  all  proceedings  until  competency  decided 114 

Injunction:  1662. 

(See  Summary  proceedings,  etc.) 
Insolvency  proceedings: 

Composition  and  respite.     (See  Composition. ) 

Declarations  of  insolvency 1154-1170 

May  be  voluntary  or  involuntary 1154 

Requisites  of  petition  of  voluntary  insolvent 1155 

Declaration  of  voluntary  insolvency,  when  to  be  made 1156 

Proof  required  of  creditor  requesting  declaration  of 1157 

When  judge  to  declare  insolvency 1158 

Objection  of  debtor  to  declaration 1160-1164, 1168, 1169 

Action  if  declaration  is  vacated 1165 

When  debtor  may  demand  indemnification  of  losses  and  damages 1167 

Effects  of  declaration  of  insolvency 1170 

Proceedings  consequent  upon  a  declaration  of  insolvency 1171-1190 

What  proceedings  to  be  ordered  in  declaration  of  insolvency 1171 

Mode  of  seizing  and  attaching  property 1172 

Rules  for  deposit  of  property 1173 

Detention  of  correspondence 1 174—1 176 

Appointment  of  depositary  administrator 1177 

Representation  of  depositary  administrator 1179 

Collection  of  debts  by  administrator 1 180 

Deposit  of  money  collected 1181 

Allowance  and  fees  of  depositary 1182 

Rules  for  consolidation  of  executions  to  proceedings 1183 

Actions  which  may  be  consolidated  to 1185 

Call  of  insolvent  when  absent 1190 

Citation  of  creditors  and  appointment  of  trustees- 1191-1225 

How  citation  to  be  made 1192-1295 

Personal  citations 1196,1197 

Appearance  of  creditors 1198, 1199, 1200 

List  of  creditors  to  be  made 1205-1206 

Appointment  of  trustees 1207-1211 

Action  in  case  of  death  of  trustee 1212, 1224 

Who  can  be  trustees 1213 

Meeting  for  election  of  trustees 1214 

When  trustees  to  take  possession  of  office 1215 

Duties  of  trustees 1216 

Remuneration  of  trustees 1217 

Objection  to  election  of  trustees 1218-1220 

Objection  to  trustees  does  not  suspend  proceedings 1222 

When  trustees  to  be  removed 1223 

Administration  of  the  estate  of  the  insolvent 1226-1246 

(See  Administration.) 

Delay  and  its  effects 1276-1283 

Acknowledgment  and  classification  of  credits.     (See  Acknowledgment, 
classification. ) 

Payment  of  credits 1284-1292 

Classification  of  insolvency  proceedings 1293-1300 

Settlements  between  creditors  and  the  insolvent.     (See  Settlement. ) 


INDEX.  529 

Insolvency  proceedings — Continued. 

Maintenance  of  the  insolvent 1312-1315 

Judge  to  fix  amount  of  allowance 1312 

When  creditor  to  receive  allowance 1315 

Inspection,  judicial.     (&e  Judicial.) 

Instruments  importing  a  confession  of  judgment 1427 

Insurance  contracts:  Appointment  of  arbitrators  and  experts  in 2136-2142 

Interdiction :  Judge  competent  in  proceedings 482  and  63,  rule  1 

Interpreters:  When  to  be  used 656 

Interrogatories : 

To  be  in  writing,  etc 580, 581 

Judge  to  set  day  for  parties  to  appear  to  answer 582 

When  judge  to  decide  upon  admission  of  questions 583 

Answers  must  be  affirmative  or  negative 585 

Intervention: 

Complaints  in.     (See  Complaints.) 

Of  ownership,  etc.,  in  oral  actions,  when  municipal  judge  to  decide 738 

In  executory  actions 1530, 1541 

Basis  for 1530 

When  to  be  interposed , 1531 

Do  not  suspend  proceedings 1532 

Second  intervention  is  not  allowed 1536 

Intestate  and  testamentary  proceedings  of  soldiers,  etc.,  preliminary  steps 52 

Proceedings,  judge  competent  in  No.  5 63 

Intestate  proceedings 958-1034 

Provisional  measures 958-975 

How  to  be  commenced 958 

What  required  in  order  to  institute 959 

Who  to  advise  authorities  of  death  of  principal 962 

Investigations  to  be  made  by  judge 964 

Action  if  intestate  has  no  relatives,  etc 965 

Administrator  appointed  to  furnish  security 966 

Correspondence  to  be  opened  by  judge,  etc 968 

Money  and  jewelry  to  be  deposited 967 

Property,  etc.,  to  be  transferred  to  judge  of  first  instance  by  municipal 

judge 969 

When  promoter  fiscal  to  take  part  in  proceedings 971 

Who  may  institute 972 

Facts  to  be  proven  by  persons  requesting  institution  of 973 

Surviving  spouse  to  be  appointed  administrator 975 

Designation  of  heirs  ab  intestato 976-999 

When  to  be  proceeded  with 976-977 

Rights  of  heirs  who  are  descendants  of  deceased 978 

I  When  judge  to  make 980 
Rights  of  ascendants 981 
Collateral  relatives 982 
Action  to  be  taken  when  presumption  of  other  relatives 983 
Proceedings  when  there  is  only  one  claimant,  etc 988, 989 
When  there  is  a  disagreement  between  two  claimants 990, 991 
Action  when  taking  of  evidence  requested 992 
Evidence  taken  to  be  attached  to  record 993 
When  judgment  to  be  rendered 994 
When  parties  claiming  right  to  estate  may  appear 996 
Action  when  no  claimant  appears 997 
5190 34 


530  INDEX. 

Intestate  proceedings — Continued. 

Designation  of  heirs  ab  intestato — Continued. 

When  succession  to  be  declared  vacant 998 

Property  to  be  turned  over  to  State  when  succession  vacant 999 

Proceedings  after  designation  of  heirs 1000-1003 

Actions  which  may  be  consolidated  to 1002 

Who  may  request  consolidation 1003 

Administration  of  intestate  successions 1004-1034 

Administration  record,  what  to  contain 1004 

Who  to  keep 1005 

Administrator,  what  to  represent  and  duties  of 1007 

Bond  of '. 1008 

When  to  render  accounts 1009 

Where  accounts  of,  to  be  kept 1010 

When  final  account  to  be  rendered 1011 

When  judge  to  approve  account,  etc 1013 

To  keep  property  in  repair 1015 

Costs  and  payment  for  repairs 1016-1018 

Payment  of  taxes 1018 

Crops  may  be  sold  by 1019 

May  lease  dwelling  houses 1020 

What  property  to  be  leased  at  public  auction 1021 

Provisions  relating  to  said  auctions 1022-1027, 1031 

Property  which  need  not  be  leased 1028 

Can  not  be  sold  during  proceedings,  etc 1029 

Judge  may  order  sale  of  property 1030 

Compensation  of  administrator 1032 

Assistants  of  administrator 1033-1034 

Inventories  in  testate  successions.     (See  Testamentary  proceedings. ) 

Investiture  of  power  to  appear  in  court 1993-2000 

When  it  can  be  granted 1994 

When  power  granted  ceases 2000 

Involuntary  insolvency  proceedings.     (See  Insolvency  proceedings.) 
Instanda:  Denned — footnote,  page  3. 
Judges — 

Of  competent  jurisdiction.     (See  Competency;  Actions;  Jurisdiction. ) 

And  courts,  when  considered  to  have  jurisdiction 53, 54 

Impliedly  or  expressly  agreed  upon,  competent  to  hear  action 56 

Of  first  instance  to  personally  examine  causes,  etc.,  before  rendering 

.  decisions 318 

Can  not  postpone  questions  discussed  in  an  action 360 

Exceptions 361 

May  elucidate  obscure  points  in  judgments 362 

Competent  in — 

Real,  personal,  and  mixed  actions 56-62 

Actions  relating  to  civil  status 63,  No.  1 

Actions  involving  the  rendition,  etc.,  of  accounts 63,  No.  2 

Actions  upon  guaranties 63,  No.  3 

Counter  claims 63,  No.  4 

Testamentary  and  intestate  proceedings 63,  No.  5 

Proceedings  relating  to  inheritances 63,  No.  7 

Bankruptcy  proceedings 63,  Nos.  8, 9 

Challenges  and  appeals  against  decisions  of  arbitrators 63,  Nos.  10, 11 

Cautionary  attachments 63,  No.  12 

Actions  of  unlawful  detainer  of  redemption 63,  No.  13 


INDEX.  531 

Judges — Continued . 

Competent  in— Continued. 

Summary  proceedings  relating  to  property 63,  Nos.  14, 15 

Proceedings  for  adoption  and  arrogation 63,  No.  16 

Proceedings  relating  to  guardianship 63,  Nos.  17-19 

Proceedings  for  the  custody  of  persons 63,  No.  20 

Proceedings  for  maintenance 63,  No.  21 

Proceedings  for  the  reduction  of  will  to  written  instruments 63,  No.  22 

Proceedings  relating  to  the  sale  of  property  of  minors,  etc 63,  No.  23 

Proceedings  for  administration  of  property  of  an  absentee 63,  No.  24 

Proceedings  to  dispense  with  the  law 63,  No.  25 

Proceedings  to  perpetuate  testimony 63,  No.  26 

Proceedings  for  surveying  and  partition  of  foros 63,  No.  27 

Rules  of  competency  of  articles  56  to  60  are  understood  without  prejudice 

to  provisions  of 71 

Judgments: 

Elucidation  of 310,  362, 406 

Final,  defined 369 

Can  not  be  changed  after  being  signed 362 

Must  be  clear 358 

Who  to  draft 263-364 

Who  to  sign 366 

Final- 
How  to  be  drafted 371 

When  to  be  issued 374 

Transcripts  of.     (See  Transcripts.) 

When  parties  to  be  cited  for,  in  actions  of  greater  import 676 

When  final,  rendered  in  default  may  be  executed,  etc 786 

Hearings  against  final,  rendered  in  default  in  oral  actions,  when  to  be 

granted 784 

By  arbitrators: 

When  parties  to  be  cited  for 812 

What  to  include 814 

How  to  be  rendered,  etc 815 

By  amicable  compounders: 

How  to  be  rendered 834 

Remedy  against 835 

When  to  be  final 836 

Execution  of 837-838 

On  appeals 849,852,872,873,885,895 

Execution  of 918-957 

Rendered  by  Spanish  courts  and  judges 918-949 

I  When  and  how  execution  to  be  proceeded  with 918 
Proceedings  in  case  of  appeal 919 
When  attachment  of  property  to  be  ordered 920 
Appraisement  and  sale  of  property 921 
Action  when  execution  can  not  be  enforced  at  once 922 
Ordering  something  to  be  done,  etc 922-924 
Ordering  delivery  of  real  estate 925 
Ordering  payment  of  money 926 
Ordering  payment  of  losses  and  damages 927-930 
Ordering  payment  of  an  uncertain  sum 931 
When  evidence  to  be  taken 936 
Period  for  taking  of  evidence 937 
What  evidence  to  be  limited  to , 938 


532  INDEX. 

Judgmen  ts — Continued . 

Execution  of — Continued. 

Rendered  by  Spanish  courts  and  judges — Continued. 

When  and  how  execution  to  be  proceeded  with — Continued. 

What  evidence  to  be  rejected 938 

Provisions  relating  to  evidence 939, 940 

When  judge  to  render  decision 941 

Execution  of  ruling  may  be  ordered 942 

Appeals  to  be  admitted  for  review  only 948 

Costs  to  be  taxed  against  judgment  debtor 949 

Rendered  by  foreign  courts 950-957 

Force  of 950-953 

Who  to  request  execution  of 954 

Period  within  which  party  to  appear 956 

Action  if  execution  ordered  or  denied 957 

Rendered  in  actions  of  unlawful  detainer 1 1593-1606 

Who  to  execute 1593 

When  execution  of  judgment  to  be  proceeded  with 1594, 1595 

Judicial  entities,  who  are  to  appear  for 2 

Judicial  proceedings: 

And  periods  of  time 248-312 

In  general 248-255 

(See  Legal  working  days;  Notifications;  Citations;  Summonses,  and  Req- 
uisitions. ) 

Judicial  acts  performed  under  intimidation  or  force  are  null 441 

Judicial  inspection: 

Is  means  of  proof 577 

When  and  how  to  be  made 632 

Parties,  etc.,  may  attend 633 

To  be  held  simultaneously  with  expert  examination 634 

Witnesses  may  be  examined  at 635 

Judicial  possession:  In  cases  in  which  summary  proceedings  to  acquire  posses- 
sion do  not  lie 2055-2059 

Judicial  intervention  in  commercial  acts 2132-2135 

Jurisdiction: 

Contentions:  Defined — footnote,  page  1. 

Voluntary:  Defined 1810 

When  courts  are  considered  to  have 53, 54 

Questions  of 51-124 

Rules  to  determine  competency 56-71 

General  provisions 51-55 

Questions  of  competency 72-124 

Lack  of,  is  a  dilatory  exception 532 

Justice: 

Proceedings  for  furtherance  of 340-342 

Associate:  Transferred,  etc. ,  must  vote  in  judgments,  etc 346 

Disabled:  When  to  vote 347 

Law,  appeal  for  annulment  of  judgment  for  violation  of.     (See  Appeals. ) 

Legal  aid  to  the  poor 13-50 

Legal  working  days  and  hours 256-259 

Legal  defect:  Is  a  dilatory  exception 532 

Legal  doctrine:  Appeal  for  annulment  of  judgment  by  reason  of  breach  of. 
(See  Appeals. ) 

Lesser  import:  Actions  of,  parties  may  appear  in  person  in ...,,....,,. 

(See  Actions  of. ) 


INDEX.  533 

Letters  requisitorial: 

Letters  rogatory ,  letters  mandatory,  and  mandates 284-300 

When  to  be  used 285 

(See  Letters  rogatory. ) 

Letters  rogatory,  etc. : 

How  to  be  received 290 

To  whom  to  be  delivered 291 

Person  requesting,  to  furnish  stamped  paper,  etc 292-294 

Action  to  be  taken  by  judge  unable  to  personally  execute,  etc 296 

Bearer  of,  not  to  be  informed  of  orders  issued 298 

Steps  to  be  taken  when  execution  of,  delayed 299 

Manner  in  which  service  of  summons  is  to  be  made  in  foreign  country 300 

Liquidation  of  gross  averages,  classification,  etc 2092-2107 

Litigants,  solicitors,  and  attorneys 1-12 

May  submit  case  for  judgment  without  taking  of  evidence 551 

Litigation,  actions  to  avoid,  parties  may  appear  in  person  in 4 

Live  stock,  temporary  seizure  of 1407 

Maintenance: 

Temporary 1607-1615 

Documentary  evidence  of  right  thereto  must  be  presented  by  applicant  for.     1607 

Citation  of  parties  for  oral  suit 1609 

When  oral  hearing  to  take  place 1610 

When  judgment  to  be  rendered 1612 

Appeal 1613 

Judgment  rendered  does  not  give  rise  to  exception  of  resjudicata 1615 

Mandates,  when  to  be  used 288 

(See  Letters  requisitorial,  etc.) 

Marriage,  in  Cuba pages  441,466,473 

Married  woman,  domicile  of 64 

Merchandise: 

Deposit  and  examination  of 2080-2088 

Abandonment,  discharge,  and  intervention  of ,  etc 2108-2121 

Sale  and  mortgage  of,  and  repair  of  vessels 2122 

Merchants,  domicile  of 65 

Minors  and  incapacitated  persons: 

Domicile  of 64 

Provisions  relating  to 2,63  (Nos.  16-19,23),  64,459 

Alienation,  etc. ,  of  property  of 2010-2029 

Mixed  actions.     (See  Actions.) 

Months,  how  to  be  counted 305 

Mortgage  of  property  of  minors.     (See  Alienation.) 

And  sale  of  merchandise  and  repair  of  vessels 2122 

Municipal  judges: 

Challenge  of 218-233 

When  to  be  interposed . 218 

When  to  be  allowed,  etc 219 

Who  to  substitute  challenged 220 

Remedy  against  decision  disallowing 223 

When  and  how  appeal  to  be  taken 224 

When  decision  on,  becomes  final 225 

Costs,  who  to  pay 

Provisions  relating  to  municipal  judges 63,  Nos.  5, 12,  20; 

435,  436  et  seq.,  452, 455, 462, 480 

Only  judge  competent  in  oral  actions 714 

Action  to  be  taken  by,  when  considered  incompetent 716 


534  INDEX. 

Municipalities:  By  whom  represented 2 

Necessary  testamentary  proceedings.     (See  Testamentary  proceedings. ) 

Notifications,  etc 260-280 

Of  rulings,  etc. — 

When  to  be  given 260 

By  whom  to  be  served 262 

By  whom  to  be  signed 263 

Where  to  be  served 264-266 

Writ  of— 

Requisites 267 

To  whom  to  be  delivered 268-269 

Service  of,  in  court  room 281-283 

Oath: 

When  not  to  be  administered  to  witness 647 

Administration  of  to — 

Experts 626 

The  parties 496,  578 

Oaths  of  office  of  officials  of  the  supreme  court  of  Cuba page  438 

Obligations,  collection  and  enforcement  of,  in  Cuba page  442  et  seq. 

Oral  actions.     (See  Actions. ) 
Order: 

For  proceeding  in  a  matter,  when  to  be  made 316 

Of  mere  practice — their  denomination,  form,  notification,  remedies  against, 

etc 251-253, 

281, 282,  298,  316,  317,  368,  369,  374-376,  400, 404, 407, 441,  820, 1817 

Ordinances  are  considered  public  documents 595 

Organization  of  the  supreme  court  of  Cuba page  431 

Orphans.     (See  Custody. ) 

Parties:  When  they  may  appear  in  person 4 

Partition  of  estates.     (See  Testamentary  and  intestate  proceedings.) 

Pendency  of  another  action  is  a  dilatory  exception 532 

Periods  of  time: 

Judicial,  compulsory  process  and  defaults 301-312 

Within  which  to  notify  judicial  decisions 260,  301-312,  319-406 

Which  can  be  extended 306-309 

Which  can  not  be  extended 310-312 

In  rehearings 375,  376 

For  appeals,  five  days 381, 406 

Suspended  to  render  decision 342,  361 

Within  which  to  request  elucidation  of  judgment 363 

In  appeals  from  decisions  rendered  at  rehearings 379 

Within  which  to  request  copies  of  judgments  appealed  from  for  review 

only 391 

To  perfect  an  appeal 391-393 

To  request  that  an  appeal  be  not  admitted  both  for  stay  and  review  of 

proceedings 394 

To  interpose  remedy  of  complaint  on  account  of  denial  of  appeal 397,  398 

Request  for  elucidation  of  judgment  interrupts  the  period  within  which  to 

appeal 406 

Expiration  of,  within  which  to  appeal,  effect 407 

For  summons,  in  actions  of  greater  import 524, 525,  527, 529 

To  answer 529,538,540 

To  plead  dilatory  exceptions 

To  object  to  dilatory  exceptions 536 


INDEX.  535 

Periods  of  time — Continued. 

For  replications 545 

Ordinary  and  extraordinary  for  evidence 552-555,  560-567 

In  which  to  request  an  extraordinary  period 556 

To  object  to  said  request 558 

To  request  a  reconsideration  of  an  order  refusing  some  proceeding  for  the 

taking  of  evidence 567 

For  expert  evidence 611,  613, 619 

For  evidence  of  witnesses 639, 660,  662,  664 

To  request  a  hearing 667 

To  impugn  a  request  for  a  hearing 674 

For  final  pleadings,  etc 668, 675 

To  appear  before  a  superior  court  in  appeal  from  a  final  judgment 678 

In  actions  of  lesser  import — 

For  defendant  to  make  answer 682 

For  appearance  when  summons  served  by  edicts 682 

Within  which  to  order  evidence  taken 692 

Within  which  to  take  evidence 695-697 

In  oral  actions 725,  731,  737 

In  incidental  issues — 

For  taking  evidence 752,  753 

For  appearance  before  the  supreme  court  and  other  courts  of  Cuba 464 

Perpetuation  of  testimony 2001-2009 

Personal  actions.     (See  Actions. ) 

Personality : 

Lack  of,  in  plaintiff  and  solicitor,  is  dilatory  exception 532 

Lack  of,  in  defendant 532 

Personal  property,  provisional  seizure  of 1407 

Persons,  custody  of.     (See  Custody. ) 

Petitions: 

Must  bear  signature  of  attorney 10 

Exceptions  to  above 10 

For  declaration  of  poverty,  requisites  of 28 

Incidental  to  hearings 334 

Ieadings: 
Supplementary 562 
To  be  given  to  opposite  party 563 
Final,  hearings  and  judgments 666-678 
Period  within  which  to  make 668 
What  to  be  confined  to 669 
To  be  attached  to  record 670 
When  not  to  be  made 675 

Pcm,ente  justices:  Their  duties,  etc 251, 254,  335-337,  344,  345, 364, 401, 870 

Poor  persons: 

Privileges  enjoyed  by 14 

What  persons  can  be  declared 15 

Applicant  for  permission  to  prosecute  or  defend  as,  to  be  defended  as,  at 

once 27 

Attorney  and  solicitor  to  be  assigned  to 27 

Costs  to  be  paid  by 39 

When  fortune  of,  considered  to  have  improved 39 

May  utilize  services  of  solicitor  and  attorney  appointed  by  himself 40 

Porto  Rico:  For  changes  in  procedure,  etc.     (See  Appendix  II,  page  486.) 


536  INDEX. 

Possession:  Summary  proceedings  to  acquire.     (See  Summary  proceedings. ) 
Judicial,  in  cases  in  which  summary  proceedings  to  acquire  possession  do 

not  lie 2055-2059 

Poverty: 

Declaration  of,  of  whom  to  be  requested 21 

Action  can  not  be  commenced  until  issue  of,  decided 22 

Of  litigants,  how  computed 16-18 

Requisites  for  petition  for  declaration  of 28 

Applicant  for  declaration  of,  must  be  at  once  defended  as  such 27 

Power  of  attorney: 

Acceptance  of  by  solicitor,  when  presumed 5 

Must  be  attached  to  documents 3 

Revocation  of 9 

Preparatory  proceedings  in  declaratory  actions 496-501 

Prescription:  When  interrupted  by  proceedings  to  secure  a  conciliation 479 

Presentation  of  documents  in  declaratory  actions 502-513 

Presiding  judge  of  the  supreme  court  of  Cuba,  duties  of,  etc page  435 

Presumption  of  acceptance  of  power  of  attorney  by  solicitor 5 

Principal,  death  of,  court  to  be  informed  of,  by  solicitor 9 

Priority  of  officials  of  the  supreme  court  of  Cuba page  438 

Proceedings: 

For  adoption  or  arrogation,  judge  competent  in,  No.  16 63 

For  custody  of  persons,  judge  competent  in,  No.  20 63 

For  maintenance,  judge  competent,  No.  21 63 

For  administration  of  property  of  absentee,  judge  competent,  No.  24 63 

For  surveying,  judge  competent  in,  No.  27 63 

To  perpetuate  testimony,  judge  competent  in,  No.  26 63 

To  dispense  with  the  law,  judge  competent  in.  No.  25  63 

Summary,  to  acquire  possession,  judge  competent  in 63 

To  retain  possession,  No.  15 63 

Of  voluntary  jurisdiction  do  not  require  signature  of  attorney 10 

When  solicitors  or  attorneys  may  attend 11 

Bankruptcy,  instituted  by  creditors,  judge  competent  in 63,  No.  9 

Of  voluntary  bankruptcy,  judge  competent  in 63,  No.  9 

To  avoid  litigation: 

Do  not  require  signature  of  attorney 10 

Provisions  relating  to 4, 459-479,  502 

When  to  be  instituted 459 

When  not  necessary 460 

Judges  competent  in 462 

How  to  be  held 470 

When  appearance  of  parties  to  be  considered  attempt  at  conciliation.       463 

Who  to  serve  summons  in 466 

Absentees,  how  to  be  summoned  in 467 

Records  of,  where  to  be  entered 471 

Costs  in,  who  to  pay 474 

Who  to  enforce  agreements  reached  at 475 

When  action  for  annulment  of  agreement  reached  at  may  be  brought.       476 

Statements  of,  to  be  made  semiannually 479 

Preparatory,  in  declaratory  proceedings 496-501 

For  taking  evidence.     (See  Evidence. ) 

In  default 761-788 

Personal  property — 

To  be  seized,  etc. ,  when ., 761 

To  remain  in  hands  of  possessor 762 


INDEX.  537 

Proceed  ings — Continued . 
In  default — Continued. 

How  real  property  to  be  attached 763 

How  long  seizure  or  attachment  to  continue 764 

Party  in  default  always  to  be  admitted  as  party  to  action 765 

When  evidence  of  defendant  to  be  received 766 

When  petition  that  seizure  be  raised  admissible 767 

How  to  be  heard 767 

Service  of  notice  of  judgment  upon  defendant 768,  769 

When  litigant  in  default  may  appeal,  etc 770,  771 

When  hearing  against  final  judgment  may  be  granted 772, 

773,  775,  776,  778,  779 

How  petition  for  hearing  to  be  determined 777 

Payment  of  costs  if  hearing  refused 780 

Action  when  heariug  granted 781 

Payment  of  costs  if  hearing  granted 781 

How  hearings  against  judgments  to  be  held 782 

When  nolle  prosequi  to  be  entered 783 

Hearings  against  final  judgments  in  oral  actions 784 

When  final  judgments  to  be  executed 786 

Hearing  of  litigant  in  default,  when  can  not  be  granted 788 

En  bankruptcy.     (See  Bankruptcy.) 

To  dispense  with  the  law 1979-1992 

(See  Dispensation  with  law. ) 

To  perpetuate  testimony 2001-2009 

Process,  executory  and  compulsory.     (See  Executory  process  and  Compulsory 

process;  Interventions. ) 
Prohibition.     (See  Inhibition.) 
Proof: 

Means  of 577  et  seq. 

Admissible  in  settlements  by  arbitrators 810 

Property : 

Summary  proceedings  relating  to.  (See  Summary  proceedings  of  minors 
and  incapacitated  persons;  see  Alienation  of  absentees,  administration 
of,  2030-2046.) 

Prosecution  or  defense  as  poor  person,  when  not  to  be  granted 17, 18 

Providendas.     (See  Orders. ) 

Provisional  seizures.     (See  Seizures. ) 

Qualifications  and  requirements  for  appointment  to  office  in  the  supreme  court 

of  Cuba page  439 

Real  actions.     (See  Actions.) 

Real  property,  provisional  attachment  of 1407 

Record: 

Of  proceedings  to  avoid  litigation,  where  to  be  entered 471 

Books  are  public  documents - 595 

Of  certificates  of  births,  etc. ,  are  considered  public  documents 595 

Of  proceedings  in  actions  of  greater  import,  when  to  be  considered  closed.      672 
Recusation.     (See  Challenge.) 
Redemption : 

Actions  for,  judge  competent  in 63,  No.  13 

Requisites  for  institution  of  action 1616 

Period  allowed  for  institution  of  action 1617, 1618 

Concealment  of  sale,  when  considered  malicious 1619 

When  evidence  to  be  taken 1624 

Appeal  from  judgment  rendered 1625 


538  INDEX. 

Rehearings 376,377,379,380 

Relationship,  cause  of  challenge 189,  No.  1 

Relator:  Denned — footnote,  page  29. 
Remedies  against: 

Civil,  against  actions  of  ecclesiastical  authorities.     (See  Applications. ) 

Judicial  decisions  and  their  effect 375-409 

Decisions  of  judges  of  first  instance 375-399 

Against  orders  of  mere  practice 375  et  seq. 

Against  final  judgments  and  issues 381 

Against  rulings 376-380 

How  appeals  from  may  be  allowed 382-386 

When  ruling  appealed  from  to  be  suspended 387 

When  jurisdiction  to  be  suspended 388,  389 

When  execution  of  judgment  not  to  be  suspended 390 

Remedy  of  complaint  against  decision  disallowing  appeal 397-799 

Resolutions  of  audiencias 400-403, 406-409 

Orders  of  mere  practice 400 

Judgments  and  rulings 401 

Final  judgments,  etc 402, 403 

Decisions  of  the  Supreme  Court 404-405,  406-409 

Decisions  relating  to  evidence 566 

Against  orders  of  arbitrators 820 

Of  civil  liability  against  judges,  etc 902-917 

(See  Civil  liability. ) 
Remedy  of  complaint: 

Against  administrative  authorities 116-124 

When  to  be  sought 119 

Replication: 

Answers,  counterclaims,  and  rejoinders 539-548 

To  be  referred  to  defendant 545 

May  be  waived 546 

And  rejoinder  what  to  contain 547, 548 

(See  Answer;  Counterclaim.) 

Requisitions,  how  to  be  served 275 

Res  judicata: 

Effects  of,  not  produced  by  decision  on  application  for  declaration  of  pov- 
erty  , 33 

Exception  of,  to  be  heard  as  separate  issue 543 

Reservation  of  actions 358 

Respite  in  insolvency  proceedings.     (See  Composition  and  respite. ) 
Retroaction  of  bankruptcy  proceedings.     (See  Bankruptcy. ) 
Rulings  (Autos. ) : 

What  judicial  decisions  are  called,  their  form,  discussion,  remedies  against, 

etc 251-253, 

281-283,  336,  346-348, 368,  370,  375, 376,  381,  383, 401-403, 406, 407, 441 
(See  Decisions,  judicial. ) 

Ordering  evidence  to  be  taken,  can  not  be  appealed  from 550 

Salaries: 

Attachment  of 1448 

Of  officials  of  the  supreme  court  of  Cuba page  438 

Sale  of  property  of  minors,  etc.  (see  Alienation) : 

And  mortgage  of  merchandise  and  repair  of  vessels ., 2122 

Sealed  wills.     (See  Wills.) 
Second  instance.     (See  Appeals.) 


INDEX.  539 

Secretaries: 

Of  courts.     (See  Clerks. ) 

Of  the  supreme  court  of  Cuba,  duties,  etc page  436 

Security  of  property  in  litigation 1417-1426 

When  judicial  intervention  in  administration  of  property  may  be  requested .     1417 

Appointment  of  receiver 1418-1420 

Seizure — 

Of  personal  property  of  litigant  declared  in  default 761 

How  long  to  continue  in  force 764 

Provisional 1395-1416 

Who  to  order 1395-1396 

When  permissible 1397 

What  necessary  to  order 1398 

Petitioner  to  furnish  security  for  damages,  etc. . ." 1400 

Seizure  not  to  be  made  when  security  furnished 1403 

Order  to  be  observed  in  making  attachment 1405 

Action  when  real  property  to  be  attached 1407 

personal  property  or  live  stock 1407 

Debtor  may  object  after  provisional  seizure  levied 1414 

In  Cuba.     (See  page  469  for  amendments. ) 
Settlements — 

By  amicable  compounders  or  arbitrators. 

(See  Arbitrators;  Amicable  compounders.) 

Between  creditors  and  the  insolvent 1301-1311 

When  settlements  may  be  made 1301 

Requisites  of  petitions  for 1302 

When  settlement  can  not  be  made 1303 

Meeting  of  creditors  to  arrive  at 1306-1309 

Provisions  relating  to  composition  etc. ,  apply 1310 

Between  creditors  and  a  bankrupt.     (See  Bankruptcy.) 

Signature  of  attorney,  full  and  surname 10,  251,  252,  253 

Solicitors: 

Attorneys  and  litigants 1-12 

When  their  intervention  necessary 3, 4, 10, 11 

When  to  cease  representing  their  principals 9 

Principal  to  be  notified  of  death  of 9 

Duties  of,  after  accepting  power  of  attorney 5, 6 

Accounts  of,  when  to  be  presented 8 

Heirs  of,  their  rights 8 

Who  may  be  substituted  for 4 

>To  be  assigned  to  poor  persons 27 
Hear  and  sign  notifications,  citations,  summonses,  and  requisitions  . .  6,  265,  270 
In  Cuba- 
Intervention  of  not  obligatory,  fees  of ,  etc page  467  et  seq. 

Stamped  paper: 

When  to  be  used 248 

De  oficio,  when  to  be  used 248 

Statements  of  proceedings  to  avoid  litigation,  to  be  made  semiannually 479 

Submission  to  jurisdiction  of  court: 

Express 57 

Implied 58 

For  first  instance 60 

For  second  instance 60 

Submission,  express  or  implied,  for  first  instance;  also  for  second  instance  ...        60 


540  INDEX. 

Substitution  for  the  consent  of  parents,  etc.,  to  contract  marriage 1918-1941 

Evidence  to  be  furnished  by  minor 1918 

Proceedings  in  case  of  natural  or  illegitimate  child 1921 

Proceedings  in  case  of  legitimate  child 1922 

Meeting  of  relatives 1922  et  seq. 

Successions.     (Se-e  Testamentary  and  intestate  proceedings.) 

Summary  proceedings  relating  to  property 1629-1683 

To  acquire  possession 1631-1648 

Requisites  for,  to  be  instituted 1631-1633 

When  evidence  to  be  taken 1634 

Bailiff  to  give  possession  to  property 1636 

Granting  of  possession  to  be  made  public 1638 

Objections  to  possession 1639  et  seq. 

When  judgment  to  be  rendered 1644 

When  judgment  to  be  executed 1645 

Adjudgment  upon  costs 1646 

Adjudgment  of  profits  and  losses 1647 

To  retain  or  recover  possession 1649-1660 

When  they  lie 1649 

Evidence  to  be  offered  in  complaint 1650 

When  complaint  to  be  admitted  and  evidence  taken 1651 

Rendition  and  requisites  of  judgment 1655  et  seq. 

Appeals 1658 

Taxation  of  costs 1659 

Based  upon  a  new  construction 1661-1683 

Proceeding  after  complaint  filed 1661 

Service  of  injunction 1662 

Inspection  of  construction  may  be  ordered 1665 

When  judgment  to  be  rendered 1666 

How  petition  for  authority  to  continue  construction  to  be  heard  and 

determined 1671 

Against  ruinous  constructions 1674-1683 

Objects 1674 

Who  may  institute 1675 

Inspection  of  construction 1677, 1678 

When  judgment  to  be  rendered 1682 

Summons: 

How  to  be  served 271 

Writ  of,  requisites  of 274 

Who  to  serve  in  proceedings  to  avoid  litigation 466 

And  complaint  in  actions  of  greater  import 523-530 

What  to  contain 523 

When  second  to  be  issued 527 

And  complaint  in  actions  of  lesser  import 680 

How  to  be  made 681 

In  oral  actions: 

When  to  be  made 721 

How  to  be  served  when  defendant  resides  elsewhere 723 

(See  Citation.) 
Supreme  court  of  Cuba: 

Organization page  431 

Constitution  and  attributes page  432 

President page  435 

Secretary  or  chief  clerk page  436 


I 


INDEX.  541 

Supreme  court  of  Cuba — Continued. 

Deputy  clerks page  437 

Fiscal  and  assistant  fiscals page  437 

Subordinate  employees page  437 

Appointment,  term  of  office,  priority,  possession  of  office,  oaths  of  office, 

and  salaries  of  officials page  438 

Qualifications  and  requirements  for  appointment  to  office  in page  439 

Surveys  and  demarcations 2060-2069 

Who  may  request 2060 

Proceedings  for,  can  not  be  suspended,  when 2063-2069 

Taxation  of  costs 420-428 

In  applications  for  permission  to  prosecute,  etc.,  as  poor  person 31, 32 

In  challenges  of  municipal  judges 227, 228 

In  challenges  of  subordinate  officials 245 

How  to  be  made 421 

How  to  be  enforced 420 

Fees  of  attorneys,  etc. ,  how  to  be  fixed 422 

Fees  which  are  not  to  be  included  in 423 

To  be  submitted  to  each  party  for  examination 425 

Procedure  in  case  of  objection  to  amount 426-428 

In  executory  actions 1443 

In  actions  of  unlawful  detainer 1580 

In  summary  proceedings  relating  to  property 1646, 1659 

Temporary  attachment.      (See  Seizure. ) 

Term  of  office  of  officials  of  the  supreme  court  of  Cuba 438 

Testamentary  proceedings  of  soldiers,  etc. : 

Preliminary  steps 52 

I        Judge  competent  in  ( number  5,  6,  and  art.  52) 63 
Testamentary  proceedings 1035-1099 

May  be  voluntary  or  necessary 1035 

When  voluntary 1036 

Legitimate  parties  may  institute;  who  are 1037 

Who  can  not  institute  voluntary 1038, 1039 

When  called  necessary 1040 

Who  may  institute  proceedings  in  necessary 1041 

When  necessary,  can  not  be  instituted 1043 

Rules  laid  down  by  testator  for  inventory,  etc.,  to  be  respected 1045 

Voluntary,  may  be  terminated  at  will 1046 

When  necessary,  may  be  closed 1047 

Extra  judicial  partitions,  etc. ,  to  be  judicially  approved 1048 

Partitions  made  by  testators  excepted 1049 

Rights  reserved  to  minors,  etc 1050 

Heirs  not  debarred  from  exercising  right  to  deliberate,  etc 1051 

Estates  may  be  declared  insolvent  or  in  bankruptcy 1052 

Voluntary 1053-1092 

Proof  of  death  must  be  presented 1053 

When  petition  for  institution  of,  to  be  ratified 1054 

When  proceedings  to  be  considered  instituted 1054 

How  citation  to  be  made  and  tutor,  etc. ,  appointed 1055 

When  curator  ad  litem  to  be  appointed 1056 

Who  to  be  cited  personally 1057 

By  edicts 1057 

Promoter  fiscal  to  be  cited 1058 

When  representation  of  promotor  fiscal  to  cease 1059 

When  judicial  supervision  of  estate  to  be  ordered 1060, 1061 


542  INDEX. 

Testamentary  proceedings — Continued. 
Voluntary — Continued. 

Who  to  make  judicial  inventory r 1063 

When  judicial  inventory  to  be  made 1 064 

Who  to  be  cited  for  making  of  inventory 1064 

What  inventory  to  contain 1065 

Special  inventory  to  be  made 1066 

Action  of  judge  when  agreement  for  administration  of  estate  can  not 

be  reached 1068 

Auditors  to  be  appointed,  when  and  how  many 1069 

Agreement  upon  experts  to  be  employed 1070 

Proceedings  when  no  agreement  can  be  reached  on  auditor 1072 

When  auditors  to  submit  report  of  partition 1075 

How  report  of  partition  to  be  prepared 1076 

How  questions  disputed  between  auditors  to  be  decided 1081 

When  judge  to  approve  partition 1082 

Proceedings  upon  objections  to  statement  of  partition 1085 

When  property  adjudged  to  be  delivered 1091 

Creditors  to  be  paid  in  full  before  delivery  of  property 1092 

Necessary 1093-1094 

When  to  be  instituted : 1093 

Procedure  in .' 1094 

Administrations  of  testate  successions 1095-1099 

Dispositions  of  testator  to  be  observed 1095 

Action  if  testator  has  not  made  disposition  as  to 1096 

Testaments.     (See  Wills.) 
Testimony  of  experts.     (See  Experts. ) 

To  be  read  to  witness  giving 650 

Perpetuation  of 2001-2009 

Towns,  their  representation 2 

Transcripts  of  judgments,  form  for 373 

Defined 1 368 

Are  considered  public  documents 595 

Translation  to  accompany  documents  in  foreign  languages 600 

Trustees  in  insolvency  proceedings,  appointment  of 1191-1225 

(See  Insolvency  proceedings.) 
Tutors  and  curators: 

Designation  and  appointment  of 1832-1878 

Designation  of  tutors 1832-1839 

Appointment  of  curators  ad  bona 1840-1845 

For  incapaciated  persons 1846-1850 

Designation  of  curators  ad  litem 1851-1859 

Appointment  to  the  office  of  tutor  or  curator 1860-1871 

Common  provisions 1872-1878 

Unlawful  detainer,  action  of,  judge  competent  in 63,  No.  13 

Verbal  wills.     (See  Wills.) 

Verification  of  public  documents.     (See  Comparison.) 

Vessels,  repair  of 2122 

Voluntary  jurisdiction: 

General  provisions 1810-1823 

What  are 1810 

All  days  and  hours  legal 1811 

When  promoter  fiscal  to  be  heard  in  proceedings 1814 

Admission  of  documents 1815 

Change  and  modification  of  orders 1817 


INDEX.  543 

Voluntary  jurisdiction — Continued. 

Appeals 1818-1821 

(See  Adoption  and  arrogation;  Tutors  and  curators;  Custody  of  per- 
sons; Wills;  Proceedings  to  dispense  with  the  law,  etc.) 
Voluntary  testamentary  proceedings.     (See  Testamentary  proceedings. ) 

Insolvency  proceedings.     (See  Insolvency  proceedings. ) 
Votes — 

And  decisions  in  actions 338-349, 365-367 

And  discussion  for  judgments,  etc.,  to  be  behind  closed  doors 343 

Three  concurring,  necessary  for  rendition  of  judgments 348 

In  rulings 348 

Justices,  transferred,  etc. ,  must  vote 346-347 

Reserved 366,  367 

Of  justices  of  courts  in  Cuba page  440 

Wills  and  codicils: 

Verbal,  manner  of  elevating  to  public  instrument 1942-1954 

How  it  may  be  effected 1942 

Who  are  considered  legitimate  parties 1943 

Notes,  etc. ,  to  be  presented  with  petition 1944 

Order  for  witnesses  to  appear 1945 

Appearance  of  witnesses,  etc 1946  et  seq. 

How  witnesses  to  be  examined 1948 

Sealed,  opening  of 1955-1978 

When  to  be  presented  to  judge 1955 

Witnesses: 

In  notifications 263,  268 

Manner  of  citing 273 

Disciplinary  correction  of 439 

Depositions  before  the  admission  of  evidence 501, 544 

In  actions  of  greater  import: 

Evidence  of,  when  it  can  not  be  submitted 636 

Questions  to  be  admitted  and  rejected 638 

Lists  of,  to  be  submitted 639 

Presentation  of  cross  interrogatories 640 

How  to  be  presented •_ 640 

When  judge  to  set  day  for  examination  of 641 

When  to  be  cited  to  appear  by  subpoena 642 

Rights  of,  who  are  compelled  to  appear 643 

Number  who  may  be  presented 644 

Costs  and  expenses  of 644 

How  to  be  examined 645 

When  oath  not  to  be  administered  to 646 

Questions  to  be  asked  of 647 

To  read  their  own  testimony,  etc 650 

Action  to  be  taken  when  witness  to  be  examined  elsewhere 655 

When  interpreter  to  be  used  in  examination  of 656 

When  deaf  mutes  may  be  admitted  as 657 

How  evidence  of,  to  be  considered 658 

Challenge  of,  in  actions  of  greater  import 659-665 

For  what  reasons  witnesses  may  be  challenged 659 

Time  within  which  to  interpose 660 

Proof  of,  to  be  presented 661 

When  objection  may  be  made 662 

When  evidence  relating  to,  to  be  presented » 364 


544  INDEX. 

Woman,  custody  of.     (See  Custody.) 

Writ  of  error.     (See  Appeal  for  annulment  of  judgment.) 

Writ  of— 

Summons,  requisites  of 274 

Citation,  requisites  of 272 

Notification..  267 


YC  36371' 


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